
    Christopher Wendler, Appellant, v. The Equitable Life Assurance Society of the United States, Respondent.
    
      Negligence—•injury to a painter from an iron window bar giving way—proof insufficient to establish the relation of master and servant —proof of agency — proof of negligence.
    
    Evidence that a painter,, who was sent by his employer to paint a building used for the storage of cotton, and was directed to receive orders from its superintendent, went to the building and, being guided by a sign, “ Superintendent’s office upstairs,” found a man who said he was the superintendent, and who took some keys, opened the door of the storage house, showed the painter how to reach the roof, told him that he could get out of certain windows upon the - scaffold, and assured him that a certain iron bar across the window was ‘ ‘ strong enough for an ox,” although supported by the further testimony that the .painter saw the alleged superintendent instructing, other men what to do, weighing cotton and ordering it on lighters, is insufficient to show such an authority in the superintendent, or such an assumption of control of the painter by the superintendent, as to establish the relation of employer and employee between the corporation, which owned the- building, and the painter, or render the corporation liable for injuries received by the painter by reason of the iron window bar having given way.
    
      Semble, that the mere fact that the iron bar gave way because of the wood under it being rotten, did not of itself establish negligence on the part of the owner of the building.
    
      Semble, that a.statement by a person that he is the superintendent of another does not establish the existence of the relation of principal and agent between. them-. .
    Appeal by the plaintiff, Christopher Wendler, from a judgment of the Supreme Court in favor of the defendant,. entered in the ■office of the clerk of the county of Hew York on the 30th day of December, 1896, upon the dismissal of liis complaint, by direction of the court, after a trial at the Hew York Trial Term.
    
      Charles G. F. Wahle, for the appellant.
    
      C. B. Alexander, for the respondent.
   Van Brunt, P. J. :

This action was brought to recover damages sustained by the plaintiff' by falling from a window and scaffold, he having been engaged in pursuing his occupation as painter upon a building of the defendant. The defendant was the owner of the premises known as 44 Atlantic dock, Brooklyn, and at the time of the accident the said building was under its control and charge. The building appears to have been used for the purpose of the storage of cotton, and on the 5th of September, 1892, the plaintiff, who was a painter by trade and employed by Fisher Brothers, painters and decorators, was sent by his boss ” to the building to work and was directed to receive orders from the superintendent of that building. Upon that day he went to the building and saw a sign “ Superintendent’s office upstairs.” He then went uj> one flight of stairs and saw a. door, upon which was printed the word office ; ” he went in and saw two men in the office, one sitting on one side and the other on the other side of a desk. He asked one of the men sitting at the desk whether he was the superintendent. The man answered yes,” whereupon the plaintiff told him he had been sent there by Fisher Brothers for painting. The man then took some keys and went with the plaintiff and opened the door of the storage house, after which he left the keys in the charge of the plaintiff. The ■ plaintiff thereupon went upstairs ■ with him and asked him how to get on the roof. The man. said “ come with me and I will show you.” He then took the plaintiff as far as the top floor of the building. He said “ wait one moment; it is dark and I will have to open one of these shutters.” He opened one and the plaintiff and he got on the roof. The plaintiff then asked him about fastening the scaffold, and be said, you ought to know if you are a painter.” The plaintiff replied, “ I will tie a rope around the beam and fasten it around,” and the man said “ that will do.” The plaintiff then asked him how about getting in and out of these windows and he said',, “ go. over the bales -of cotton and get to the. windows.*; grab hold of .the iron bar to get over the bales of cotton; other'. men do that.and you must do it.” The man instructed him that he must only leave one window open at a timethat if he left. ■ the windows open and any sparks got in there on the cotton and set it. on fire the plaintiff would be held responsible. Ill front' of'the i windows were iron bars about two and a half feet above the bottom: of the window and the bales of cotton came up about four and a half feet from the bottom of' the floor. The windows were inclosed, in glass. and iron shutters.. The iron bars were fastened on- each, side of .the window casings with screws. The plaintiff further testi-i fied that in his conversation he asked the man who accompanied him; “ is that strong enough ? ” and the man answered, if you want to-pull that iron bar down you will have to pull -down the. side of the. house ; that is strong enough for an ox.”

It,further appeared that on the seventh-of September the' plain-, tiff went tp work as, usual, and in the afternoon of that day he was-! working on the second storage house on the third story from the ground. ■ Mr. Fisher, his employer, came and called him off the scaffold. After Mr,- Fisher called" him he placed his foot upon the sill of the,window and his hands on the iron bar with the intention, of going in-. He tried to bend his knee to get underneath the bar* still holding the bar in his hand, when out came- the-bar and- backward the plaintiff fell. He had both legs on the sill and he drew-on the falls, but not on the bar to help himself in. As he fell with the bar he struck the scaffold, pushing it from the building,, and fell, to the ground. For the damages sustained by'this fall this action was brought.. Upon the trial, after the -termination of the plaintiff’s;; case, the complaint was dismissed. .

The question which .it is necessary to consider here is: Did the-relation of .employer and employee at all exist between the plaintiff ' and the defendant ? It was sought to-establish this relation .by, the-, - transaction which took place between the plaintiff- and tile alleged ; superintendent, who, it is alleged, gave directions to. the. plaintiff.' with reference to the conduct of the work. It . appears from the-evidence that the plaintiff was in the, employ of Fisher Brothers* and that they .were doing the work, but under what kind-of a con- ¡ tract does not appear. It'is ,sought, however, by -proof,- in -reference;to what transpired between the plaintiff and the alleged superintendent, to establish the relationship of employer and employee by reason of the directions given by the latter. The plaintiff, in order to establish the fact that this alleged superintendent was the alter ego -of the defendant in reference to the management of the building in question, testified, in addition to what has been- already stated, that he saw the alleged superintendent instructing other men what to-do, weighing cotton and giving them orders to put it on the lighters, and that he had the keys of the warehouse. One of the plaintiff’s witnesses also testified to the same effect in regard to what he had seen this alleged superintendent do.

Upon a consideration of the whole of this evidence, however, it does not by any means establish that this person who had charge of the warehouse in question, and who was evidently managing. the cotton storage business which was carried on by the defendant upon its premises, had anything to do with the management or employment of the. men who were at work painting the building. It appears that Fisher Brothers were the “ bosses ” of the job; that the plaintiff was employed by them, and that the only direction which the alleged superintendent gave in respect to this work was a direction looking to the security of the building during the progress of the work. The plaintiff was not directed as to how he was to do the work except that he should not imperil the building by leaving the windows open, and he was told that he might go in and out of the windows for the purpose of getting upon the scaffold. This by no means constituted such an assumption of control over the servants of Fisher Brothers as would make the defendant responsible even if this alleged superintendent had the authority so to do. In all the directions which he gave he was only taking such precautions as were necessary to protect the property of his prim cipal while this work was being prosecuted. We think the evidence wholly failed to show any assumption or direction of the work Or charge of the work such as would make the plaintiff in any respect the employee of the defendant.

Ueither does the evidence show that the alleged superintendent had any authority whatever to control the work or to give any directions in respect thereto by which he might bind the defendant. All that the evidence tended to show was that he had something to do with the business there carried on, and that he weighed and attended to the delivery of the cotton. It is true that the plaintiff.' swears that he said he was the superintendent. But an agency can never "be proven by the declarations of the agent himself. Upon consideration of all the evidence,, it seems to me that it cannot be held that anything was shown which would make this alleged superintendent the alter ego of the defendant, so that it became responsible for any declaration which he might make, and especially if such declarations are to amount to a warranty in respect to the condition of any part of the building. The learned court below seems-to have put his decision upon a different ground, namely, that no act of negligence was shown upon .the part of the defendant; that the iron bars in question were apparently safe; that there was. no-evidence that an inspection would have disclosed the fact that the wood was rotten underneath the bar, or that there was any defect-in the fastening. This may be another consideration which would tend to support the judgment. The bar was similar to .others which had been used in the manner in which the plaintiff was using this-bar. There was nothing to distinguish it; it was apparently sound;. inspection-would not have disclosed any defect; and, as a consequence, it is difficult to see upon what negligence on the part of the-defendant could be predicated.

Upon the whole case, we are' of opinion that the judgment, appealed from'should be affirmed, with costs.

Rumsey, Williams, O’Brien" and Ingraham, JJ., concurred.

■ Judgment affirmed, with costs.  