
    Sarah A. Kenney, as Administratrix, etc., of Lewis A. Kenney, Deceased, Appellant, v. Brooklyn Bridge Stores Company, Respondent.
    First Department,
    October 25, 1907.
    Negligence— injury by fall through, hatchway — when owner of building not liable — sections 487 and 492 of the Consolidation Act as to I trap doors construed. , , . : , !
    The owner of a building is not liable for the death of the employee of' an architect who came upon the premises without the owner’s knowledge during business hours to take measurements for repairs to a hatchway,- and while: j ■investigating in the dark with.a candle fell through a partly covered hatchway, and was.killed.' . 'i
    Liability of the owner cannot he predicated on the sections of the Consolidation Act (Laws of 1883," chap. ■ 410, as amd. by Laws of 1893;. chap.-375) which required a substantial guard and trap doors, which “shall be closed at the ¿lose of the business of each day,” when, as' a matter of -fact, the hole through which the intestate fell was supplied with a substantial’guard’ and'trap door, and the accident happened during, business hours.. The intent of said statute . . was to protect firemen and-, others necessarily'called to. the building after •.business hours. ... ' ■ • .
    ■ Moreover, the provisions of . the Consolidation Act, amended as aforesaid, have been superseded by the enactment of a municipal building code .pursuant to ' section 647 of the charter of the city of New York.
    Appeal by the plaintifi, Sarah A. Kenney, as administratrix, etc., from, an order of the Supreme Court, made at the-New York Trial-Term and entered in the office of the clerk of the.county of New York on the 4th day of April, 1907., granting the defendant’s motion to set aside a verdict of $5,500, rendered by a jury in favor of the plaintiff, and directing a new trial of the action.,
    
      Joseph P. Osborne, for the appellant,
    
      Charles J. Dodd, for the respondent.
   Ingraham, J.:

On' the trial the plaintiff having obtained the verdict of the jury, ■the court, on motion of the defendant, set it aside ‘ and. ordered a new trial upon the grounds as recited in the order that the verdict was' contrary to law, contrary to the evidence, contrary to-the weight of evidence, and upon all. the grounds set forth'-in section 999 of the Code of Civil Procedure ; and from that order the plaintiff appeals, . , ■

The plaintiff’s téstator was a carpenter, forty-eight years of age, and his death was caused by an accident which happened on certain premises occupied by the defendant. From the evidence it appeared that the deceased was in the employ of one Lawrence; that Lawrence had an order from an architect to' do certain work on the stairways and to board over the underside of the hatchway covers in a building occupied by the defendant, located under one of the arches of the Brooklyn bridge; and to make some measurements for this work Lawrence and the deceased went to the premises on August 13, 1903, about three o’clock in the afternoon; that they were admitted to the premises by an employee of the defendant, who opened the building 'for that purpose. The building had windows in front and rear; the front shutters were open and' the rear shutters closed. After taking the measurements of the stairways, the deceased was informed that he would have to board over the bottom of the hatchway covers so that they could be covered with metal. These covers were off to the left, and the deceased, having a candle in his hand,' started to walk towards the covers. The place was quite dark; the deceased stepped on a cover and walked towards the rear, holding a candle in his hand, when suddenly he and the candle disappeared, and he was found on the floor below unconscious. In a few moments he revived, got up without assistance, and walked towards the front of the building; he was subsequently taken to the hospital and died from a fracture of the skull. The room in which these men were measuring was very dark; they could scarcely see anything. Lawrence testified that he had been in the premises about two weeks before the accident to make an estimate on the work. He was subsequently given an order to do the work. The premises were used as a warehouse, and the deceased and his employer were there to measure the size of the covering of these very hatches through which the deceased fell. Neither the deceased nor his employer had any relation to the defendant, but the employer was ordered to do work upon the premises by an architect. The hatch covers for these hatches were raised six or eight inches above the floor, but for some reason at the time of the accident the covers of the hatchway had not been placed so that the hatchways were entirely covered. The evidence is uncontradicted that three days before the accident this cover was placed upon the hatchway so that the hatchway was. entirely covered.

The plaintiff relies upon section 487 of the Consolidation Act (Laws of 1882, chap. 410, as amd. by Laws of 1887, chap. 566), which provided that the hoistways, freight elevator or well hole must be protected by substantial railings or good and sufficient trap doors, and such railings and trap doors be clósed at all times, except when in actual use by occupant or occupants of buildings having use or control of the same. Section 487 of the Consolidation Act as originally adopted con-' tains the provision in regard to hoistways, elevators or well holes, but this section was further amended by section.28 of chapter 275 of the Laws of 1892, by which all provisions in regard to hoistways, elevators or well holes were eliminated. By section 28 of the same chapter, section 492' of the Consolidation Act was amended so as to provide that “ in any building in which there shall be any' hoistway or freight elevator or well-hole not inclosed in walls constructed of brick or other fire-proof material and provided with fire-proof doors, the openings thereof through and upon each floor of said building, shall be. provided with and protected by a substantial guard or gate and with such good and sufficient trap-doors with which to close the same, as may be directed and approved by' the superintendent of buildings; * * *. Such guards or gates shall be kept closed at all times, except when in actual use and the trap-doors shall be closed at the close, of the business of each day by the occupant or occupants of the building'having the use or control of thesame.” This section is included in title 5 of chapter 11 of the Consolidation Act, is headed “Construction of Buildings,” and the title contains a.building code for the construction of buildings in the then city of New York.

It is very doubtful whether the evidence discloses a violation of the provisions of this section as amended in 1892. The hoistway was protected by a substantial guard with which to close the same when the covering of the hoistway was in place and there is-ho evidence that' any other or different guard or trap door had been directed' and approved by the superintendent of buildings. The accident happened about three o’clock in the afternoon, and there is no evidence to show that that was after the close of business of that day. A substantial guard and a good and sufficient trap door to this hoist-way having been-provided by the owner of the building,, and the accident happening during business hours, I do not see that the provisions of this statute were violated. The evident intent of this statute,' providing that after the close of business the guards or trap doors to close the hoistways or elevator shafts should be closed, was to protect firemen or others who were necessarily called to the building after business hours. The owner or occupant of this building, so far as appears, had no notice that the deceased or his employer were to be in this building at the_ time of the accident. They had been employed by an architect, under whose authority is not.disclosed, to make certain repairs or additions to the coverings of these hoistways. They voluntarily went into the building to examine the covers to this- hatchway for the purpose of making the repairs, and in a dark room, with only the light of a single candle which the deceased was carrying, went to look at one of the covers that were to be repaired. I do not think that the deceased or his employer were within the class for whose benefit this statute was passed or that it could be said that the defendant, who was in occupation of the building, was responsible' for an accident happening under the circumstances here disclosed.

But it would seem that these provisions of the Consolidation Act as amended have been superseded and aré not now in force. Section 647 of the New York charter (Laws of 1897, chap. 378) provides : “ The several acts in effect at the time of the passage of this act concerning, affecting or relating to the construction, alteration or removal of buildings or other structures in any of the municipal and public corporations included within the city of blew York as constituted by this act are hereby continued in full force and effect in such municipal and public corporations respectively, except in so far as the same are inconsistent with or are modified by this act; provided, however, that the municipal assembly shall have power to establish and from time to time to amend a code of ordinances, to be known as the 6 building code,’providing for all matters concerning, affecting or relating to the construction, alteration or removal of buildings or structures erected or to be erected in the city of blew York, as constituted by this act, * '* . * and provided further that upon the establishment of such code the several acts first above mentioned shall cease to have any force or effect, and are hereby repealed, but such repeal shall not take effect until such ‘building code’ shall be established by the. municipal assembly as herein provided.” There is no proof in this case that such a “ building'code” had been adopted by the' municipal assembly and I do not know that the court can take judicial notice of that fact. But section 407 of the charter of 1901 (Laws of 1901, chap. 466) provides that the building code which shall be “in force in the city of Blew York on the first day of January, nineteen hundred and two,. * * • * and all then existing laws affecting or relating to the construction, alteration or removal of buildings or other structured within the city of Blew York are hereby declared to be binding and in force in the city of Blew York, and shall continue to be so' binding and in force except as the same may from time to time be revised* altered,' amended or repealed as herein, provided,” with the further provision giving to the board of aldermen power from time to time to- amend such building code. In the case of City of New York v. Trustees of Sailors’ Snug Harbor (85 App. Div. 355; affd. on opinion . below., 180 N. Y. 527) it 'ivas. held that the building code enacted under the authority of the charter of 1897 should be given the same force within the corporate limits as a statute passed by the Legislature, and at the "date of that decision in 1903 a building code was in force in • the city of Blew York. It would seem, therefore, that under the express provisions of the charter of ,1897, upon' the enactment of that building . code by the municipal authorities the provisions of the Consolidation Act in relation to the construction of buildings in the city of -. Blew York were repealed, and the liability of the defendant, if any, must depend upon the. building code in force on August 13,-' 1903, the date of this accident. As- the statute upon which the' plaintiff relies has clearly-been repealed and as there is -no statute or provision of law ivliich it appears was violated by the defendant, I think the court below was clearly right in setting aside the verdict and ordering a new trial.

It follows that the order appealed from should be affirmed, with costs. ’. ■

Laughlin and Clarke, JJ., concurred; Patterson, P, J.,. and Houghton, J., concurred in result..

Order affirmed, with costs.  