
    BERG v. PARSONS.
    (Supreme Court, General Term, First Department.
    January 18, 1895.)
    1. Contributory Negligence—Failure to Enjoin Trespass.
    Where a contractor employed by defendant to blast stone on a lot near plaintiff’s house proceeded with the work in so careless a manner that plaintiff’s house was injured, failure of plaintiff to enjoin the continuance of the work was not contributory negligence.
    2. Master and Servant—Incompetent Contractor.
    In an action to recover damages for defendant’s want of care in employing an incompetent contractor to blast stone near plaintiff’s house, the evidence does not show that defendant made sufficient inquiries as to the contractor’s competency, where it appears that he only inquired of a clerk in a lawyer’s office, and that he claimed to have seen some work that the contractor had done reasonably well, but it does not appear that defendant was informed that the contractor had ever done any work of the kind for which defendant had employed him.
    8. Appeal—Errors Cored—Motion to Dismiss.
    Error in refusing to dismiss a complaint is cured, where evidence is afterwards supplied by defendant which would have made the refusal proper had it been in the case when the motion was made.
    4 Negligence—Evidence—Injunction against Third Person.
    In an action to recover damages for defendant’s want of care in employing an incompetent contractor to blast stone near plaintiff’s house, it was error to admit in evidence an injunction obtained by defendant, restraining the contractor from continuing the work.
    ■5. Same—Instructions.
    In such case it was error to charge that the jury might take into account defendant’s failure to make an inquiry as to such contractor's record at the office of the fire department, where permits to blast must be ob- . tained by a contractor, since the regulations of the fire department only relate to keeping combustibles on the premises while the work is in progress.
    Appeal from circuit court, Hew York county.
    Action by Charles L. Berg against Henry Parsons for injury to plaintiff’s house. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and PARKER, J.
    A. Thain, for appellant.
    C. W. Pierson, for respondent.
   YAH BRUHT, P. J.

This action was brought to recover damages for defendant’s negligence and want of care in employing an incompetent contractor to engage in blasting operations in proximity to the plaintiff’s house. It appeared that the plaintiff was the owner of the house and premises known as “No. 315 West UinetySecond Street”; and that the defendant was the owner of certain vacant lots adjoining the plaintiff’s house on the west; and that defendant employed one Michael Tobin to excavate in his lots to a depth of 10 feet below the curb line. Tobin, in performing this contract, by his carelessness caused injury to the plaintiff’s house, compensation for which was sought to be recovered from the defendant in this action upon the grounds above stated. Evidence having been taken upon both sides, the case was submitted to the jury, who found a verdict in favor of the plaintiff; and, an order having been made denying a motion for a new trial, from such judgment and order the present appeal is taken.

It is claimed upon the part of the appellant that there was no evidence upon which the jury were warranted in finding that- the defendant was negligent, or that the plaintiff was free from contributory negligence, and that the burden óf proof was upon the plaintiff' as to both of these propositions. The claim of contributory negligence seems to be founded upon the fact that the plaintiff did not stop Tobin from continuing his reckless career as a blaster as soon as he might have done, and before he had sustained as much damage as he did; and that the plaintiff had a right to interfere with the contractor, while the defendant had not; and that, if Tobin was carrying on his work carelessly, and in a manner likely to endanger his property, the plaintiff might have applied for and obtained, before the accident, an injunction, which injunction, it appears, he did procure after the injury was done. The force of this reasoning we are unable to see. The plaintiff was not bound to take legal measures to restrain trespasses .committed by persons employed upon the part of the defendant. It was the duty of the defendant to have employed for this business, conceded to be dangerous in its character, a suitable and competent person; and, if he did not employ such a, person, there was no obligation upon the part of the plaintiff to take active legal measures to restrain the action of this incompetent person, so improperly employed.

Another objection to the recovery is that there was no evidence from which the jury were warranted in finding that the defendant was negligent. Upon an examination of the' case, it appears that, although the defendant originally swears that he made inquiry in respect to the capacity of Tobin to do the work in question, upon further examination it is evident that he made no inquiries whatever, except from a clerk in a lawyer’s office, and that he claimed to have seen a piece of blasting done by the contractor which was reasonably well done. But, from all the information that the defendant got in respect to the capabilities of the contractor, he was not informed that he had ever done the kind of work called upon to be done on this occasion. He had done some blasting for sewers, but nobody ever knew that he had excavated a cellar. We think, therefore, that the defendant did not, so far as this record discloses, perform that duty which is incumbent upon a man who is about to employ another to do a dangerous piece of work.

It may, perhaps, be proper to notice that the objection is taken that some of this evidence of negligence in regard to the defendant’s inquiries in respect to Tobin came out upon the defendant’s case; and that, therefore, it was error not to dismiss the complaint, upon the motion of the defendant, at the termination of the plaintiff’s case. But it is a well-established principle that, if the defendant subsequently supplies evidence which would have made it proper ■to deny a motion to dismiss had it been in the case prior to the making of the motion, the error is cured. This objection, therefore, is not available.

We think, however, that there was error in the admission of evidence, and also in the charge of the judge. The plaintiff having obtained an injunction against the defendant and Tobin restraining the continuance of the work, that injunction was offered in evidence, and received, notwithstanding the objection of the defendant. This, we think, was error. A - is claimed upon the part of the defendant, the effect of the introduuuun of these papers might have been to lead the jury to believe that the court had already adjudged, not only that Tobin had been negligent, but that the defendant himself had also been negligent.

We think, also, that the court erred in charging the plaintiff’s request, as follows:

“In considering the question whether defendant exercised due and reasonable care in the selection of a contractor, the jury may take into account defendant’s failure to make inquiry as to such contractor’s record at the office of the fire department, where permits to blast must be obtained by contractors before they can lawfully begin operations; and also the failure to make inquiries of persons familiar with the manner in which the contractor had performed previous jobs.”

This charge was objected to. It seems to us that the part relating to the fire department was clearly erroneous. It is manifest from the regulations of the department that the permit referred to in such regulations as applicable to the case at bar related to the keeping of combustibles upon any work in progress; and, as a result, until the contractor had obtained the contract for performing the work, he would not be likely to pay fees to the fire department for permission to keep combustibles upon the premises in question. If inquiry had been made at the fire department, nothing would have been found there against Tobin, as the evidence shows; and the fact that he had no permit to keep combustibles in this particular place would have argued nothing against his competency to do the work in a proper manner.

For these reasons, we think that error has been committed, and that the judgment and order appealed from must be reversed, and a new trial ordered, with cofts to the appellant to abide the event.  