
    Ottilia Bier, as Administratrix, etc., of John Bier, Jr., Deceased, Appellant, v. The Roebling Construction Company, respondent.
    First Department,
    October 22, 1909.
    Judgment — prior decision establishing negligence of contractor — when binding in subsequent case.
    Where both the Appellate Division and the Court of Appeals have held that a certain independent contractor was liable for injuries caused by the collapse of a certain building, it is error to dismiss the complaint of another plaintiff suing to recover for the death of a person killed in the same disaster, where the evi dence in the two cases is substantially the same, except that in the second case there is additional proof of the nuisance.
    Appeal by the plaintiff, Ottilia Bier, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 26th day of May, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Mew York Trial Term in an action to recover damages for the death of the plaintiff’s intestate alleged to have been due to the erection and maintenance of a dangerous nuisance by the defendant.
    
      M. L. Malevinsky of counsel (Arthur Ofner with him on the brief], Frank A. Acer, attorney, for the appellant.
    
      Gilbert E. Roe of counsel [Henry L. Scheuerman with him on the brief], Roe & McCombs, attorneys, for the respondent.
   Clarke, J.:

The plaintiff’s intestate was an employee of the defendant, the Boebling Construction Company, which was engaged in constructing the fireproof flooring of the Hotel Darlington, in the city of Mew York, and while so employed was killed by the disastrous collapse of said building on the 2d of March, 1904. In a previous action, entitled Haenschen v. Allison Realty Co., growing out of the same disaster, a judgment obtained by the plaintiff for damages for the death of his intestate was affirmed by this court (124 App. Div. 920) and by the Court of Appeals (sub nom. Haenschen v. Roebling Construction Co., 194 N. Y. 533). That case was tried and determined upon the theory of nuisance, as appears from the record and briefs on file in this court, and from the memorandum of affirmance in the Court of Appeals — “ Appeal from a judgment * * * modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have occurred through the maintenance of a dangerous nuisance by -the defendants.”

We have carefully examined the record in this case and compared it with the record in the Haenschen Case (supra), and find the facts substantially the same in the two records, with the exception that in the case at bar the plaintiff has given additional evidence tending to show the faults' of the plans upon which the building was being constructed, although said plans had not been approved by the building department, and showing that said plans called for upwards of thirty-three tons less of steel in the framework of the building than in the first plans which were approved by the department, but which were not followed.

The respondent claims that it was an independent contractor, in no way responsible for the making of the plans alleged to have been faulty and which were not approved, nor for their adoption by the owner of the property; that there is no proof that its own work was negligently or improperly executed, or that the material which it put in was defective, and while it admits that the new plans were not approved by the department, it claims that it was neither its duty to file said plans nor to procure their approval, and that, therefore, it cannot be held liable as for the erection or maintenance of a dangerous nuisance.

Each one of these claims was strongly urged in the former case, and unless the decision of this court and the Court of Appeals had not been against them, the judgment there appealed from could not have been affirmed, for it was upon no other theory that the case was tried or argued upon appeal.

It seems unnecessary, therefore, to state in detail the facts shown by this record. The dismissal of the complaint at the close of the plaintiff’s case, upon the ground that the facts shown did not constitute a cause of action, when the appellate courts have determined that upon these facts there was a cause of action and sustained a judgment entered upon the verdict of a jury thereon, is obviously error.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  