
    Walter F. Hashagen, Respondent, v. Mary Schafer, Appellant, Impleaded with Simon Schafer and Olaf Valley, Defendants.
    (Supreme Court, Appellate Term,
    May, 1907.)
    Negligence—Actions — Evidence — Weight and sufficiency — Injuries caused by falling objects.
    Proof of the falling of a brick in a building in process of construction, which strikes and injures a workman in the employ of a contractor for the plumbing work, without proof of where the brick fell from or who caused it to fall, is not sufficient evidence of negligence on the part of the owner of the building to sustain a verdict against her.
    
      Appeal by defendant Mary Schafer from a judgment in favor of the plaintiff for $575.22, rendered in the Municipal Court of the city of New York, second district, borough of the Bronx.
    Frank V. Johnson (Allan E. Brosmith, of counsel), for appellant.
    Walter J. Rosenstein, for respondent.
   Brady, J.

This action was brought by the plaintiff against Mary Schafer, Simon Schafer, and Olaf Valley, to recover for personal injuries received by plaintiff in being struck by a falling brick in a building owned by the defendant Mary Schafer, and in the construction of which the defendant Simon Schafer was alleged to be the superintendent of Mary Schafer. The defendant Valley was alleged to have been employed by the owner to perform the carpenter work. On the former trial the liability of the defendant Mary Schafer was urged upon the theory that she was guilty of an infraction of section 20 of the Labor Law, and the jury awarded a verdict against her of $500. Upon appeal to this court the judgment was reversed. 51 Misc. Rep. 617. On the recent retrial of the case the testimony on the former trial was, by stipulation, inserted in the record; and, in addition, the defendant Mary Schafer put in evidence a contract on the part of the defendant Valley to do the carpenter work. The justice gave judgment for the plaintiff for the sum of $500 and costs, and the defendant Mary Schafer appeals to this court. There is no evidence in the case to establish liability on the part of the defendant Mary Schafer. The plaintiff was a workman in the employ of a contractor for the plumbing work and, while engaged in work upon the building, was struck by a brick which fell from" above and was injured. " There is no evidence of where the brick fell from or what or who caused it to fall; nor is the appellant connected in any manner, either through her superintendent or servants, with the situation as it existed at the time of the accident. So far as the husband of the defendant may have been the superintendent, it is clearly evident that his powers obtained to the extent only of passing upon the sufficiency of the work when done and not as to the right to interfere with or direct the manner of its performance. So far as appears from the evidence, there was no violation by the appellant of any duty owing to the plaintiff. The only fact apparent is that the plaintiff was injured by a falling brick on the premises of the appellant, but the record fails to show any circumstances or facts upon which the appellant could be held liable.

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

Gildersleeve, J., concurs.

Seabury, J. (concurring).

The evidence showed that Valley was employed to do the carpenter work upon the building. Under these circumstances section 20 of the Labor Law was not applicable" to the owner, and the defendant Schafer is not liable to the plaintiff for this accident. 51 Misc. Rep. 617; Koch v. Fox, 71 App. Div. 288.

The judgment should be reversed and the complaint dismissed, with costs to the appellant.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed, with costs.  