
    Sarah A. Charlock, Resp’t, v. Edward Freel, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    
      1. Negligence—Defective sidewalk—Liability of contractor.
    Defendant, in compliance with a contract with the city, in which the power was reserved to the latter “ to vary, extend or diminish the quantity of work during its progress,” had put in a sewer, hut before the repaving of the street was done he was directed by the city engineer to raise the grade. The digging away of the earth to dispose of water which had accumulated behind the curbstone during a storm left a hole into which plaintiff fell during the night. Held, that the contractor was liable and not the city.
    2. Same.
    The fact that the department or city engineer had ordered him to do this particular work did not affect the question of liability, as he had assumed its performance and was doing it with his workmen; to make the city liable the city and not the contractor must have been the master of the workmen.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment entered upon verdict in favor of the plaintiff at circuit.
    
      Wm. G. DeWitt, for app’lt; Charles J. Patterson, for resp’t.
    
      
      Affirming 21 N. Y. State Rep., 963.
    
   G-rat, J.

This is an action to recover damages of the defendant for personal injuries sustained by the plaintiff. In walking along a sidewalk of a street of the city of Brooklyn she stepped into a hole which had been left near the curb by some workmen employed under the defendant. He contested his liability for the occurrence on several grounds, but was unsuccessful, and the jury returned a verdict for damages against him. Upon this appeal the only question we feel called upon to review grows out of the defendant’s claim that in the performance of the particular work, in the course of which the injury was made possible, he was not acting as an independent contractor, but as a mere servant or agent of the city, and' that it, and not he, was legally responsible for any damages. The defendant’s contract was with the city, and it called for the construction of a sewer in certain streets. The sewer had been put in, but before the repaving of the street was done by the contractor, he was directed to raise the grade of the street at a certain intersection with another street. He undertook to do this, and after raising the curbstones, left the adjoining portions of the sidewalk flagging disarranged. The sidewalk being in this condition of disorder, and being lower than the grade of the street, a storm occurred and water collected in the spot left open by the removal of the flagstones. The.workmen dug away the earth, so as to permit the water to escape through the curb into the sewer basin. This caused a hole, into which, being left unguarded, a day or two afterwards, during the night, the plaintiff fell. As the workmen were employed by the defendant, he was responsible for the injury which occurred to plaintiff through the carelessness with which that part of the work was done and the neglect to take reasonable precaution against possible accidents. He was not in the employment or under the direction of the municipal authorities in any such sense as to exempt him from a liability for the consequences of his negligent or unskillful acts, or of those of his- employes.

It is true that the contract primarily, or principally, related to the building of a sewer in the street, but by one of its provisions the power was reserved “ to vary, extend or diminish the quantity of work during its progress,” and it was therein provided that “ the engineer shall also fix the price to be paid for all work that may be necessary to be done that is not included in the contract.” This provision may not have been obligatory upon the contractor as to work not related to, or in connection with the principal plan of his agreement, but when, at the request of the chief engineer of the city, he undertook the work of raising the street grade, the contract was thereby extended so as to include it. Coming between the completion of the sewer and the repaving of the street, and being designed to make the drainage better, it was work which was cognate in its nature to the principal undertaking, and the effect of its assumption was to continue the contract relations between the parties, with all the obligations and responsibilities that contract imposed, expressly or by legal implication.

Nor could it, in my opinion, affect the question of the defendant’s liability if the department, or city engineer, had ordered him to do this particular work, and it could not be deemed to be comprehended within any of the provisions of his contract. The contractor assumed its performance and was doing it with workmen employed by him. The direction of the city officers had nothing to do with the manner of the performance, and there was mo interference with the workmen engaged under the defendant in the detail work.

In Vogel v. The Mayor, 92 N. Y., at p. 18, Earl, J., said, referring to the cases of Kelly v. The Mayor, 11 N. Y., 432, and Pack v. The Mayor, 8 id., 222: “ The doctrine was again announced that "to make the city liable it must have the power to direct and control the manner of performing the very work in which the carelessness occurred.”

The principle of liability for such an occurrence as we have in this case, is that the defendant, and not the city, was the master of the workmen. He had the control of the execution of the work which he had been directed to perform. A duty rested upon him, therefore, to use such precautions in doing the work as to make it reasonably safe against the possibility of accidents to the traveling public. For the consequences of a neglect such as was testified to here, he became responsible. Upon the evidence we must accept the verdict as conclusively establishing the negligence of the defendant’s workmen and the plaintiff’s own freedom from fault and as, for the reasons we have mentioned, the defendant was not divested of liability for the carelessness of his men, the judgments below were right and should be affirmed, with •costs.

All concur.  