
    Edwin Van Antwerp, App’lt, v. Edward F. Linton et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    1. Master and servant—Third persons.
    An agent or servant is not liable to third persons for nonfeasance.
    2. Same,
    Where the agents of a corporation, charged with the duty of erecting on its grounds structures for the accommodation of the public, negligently permit a defective structure to be erected, they are guilty merely of nonfeasance.
    
      Appeal from a judgment, dismissing the complaint.
    
      Franklin Pierce, for app’lt; Edward W. S. Johnston, for resp’ts.
   Parker, J.

This appeal brings up a judgment entered on the dismissal of the complaint after the opening address to the jury by plaintiff’s counsel, which yas taken down. From the complaint and opening, it appears that the plaintiff was injured by the fall of the grand stand at the Yale-Princeton foot-ball game on Thanksgiving day, 1890, on grounds in possession of the Brooklyn’s Limited, a corporation organized under the -laws of the state of New York. The action was brought against the Brooklyn’s Limited and Messrs. Linton, Chauncey, and Wallace, who were appointed a committee of the board of directors of the Brooklyn’s Limited, to put the grounds in condition for the exhibition of the game. The Brooklyn’s Limited made default, and the question presented to the trial court, upon the motion to dismiss the complaint, was whether, from the complaint and opening, a cause of action against the individual defendants was stated. It was conceded that the individual defendants did not have any lease from the Brooklyn’s Limited nor any one else, running to them; and the sole ground upon which the plaintiff sought to charge them with liability was that they were appointed a committee by the directors of the corporation to erect a stand, and otherwise provide for the reception and convenience of the public, and that by reason of their negligent omission of duty there was a defective construction of the stand, which led to it falling, resulting in injury to the plaintiff. As it was conceded that the Brooklyn’s Limited was a domestic corporation duly organized under the laws of this state, and in possession of the premises when the stand was erected and also at the time of the accident, liability against the individual defendants could not be predicated upon their being directors, officers, or stockholders in such corporation. Demarest v. Flack, 128 N. Y. 205; 40 St. Rep. 383. That they were the agents of the corporation in directing and superintending the erection of the stand was assumed by the learned trial judge, as he was bound to do, upon the complaint and opening; and he reached the conclusion that the acts with which they were charged constituted nonfeasance, and not misfeasance. If he was right in such respect, it is conceded that the complaint was properly dismissed; for, whatever may be the rule in other jurisdictions, it is conceded that in this state an agent or servant is not liable to third persons for nonfeasance. As between himself and his master, he is bound to serve him with fidelity ; and for a breach of his duty he becomes liable to the master, who, in turn, may be charged in damages for injuries to third persons occasioned by the nonfeasance of the servant. For misfeasance the agent is liable to third parties suffering thereby. The distinction between nonfeasance and misfeasance has been expressed by the courts of this state as follows:

“ If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable; while, if the duty rests upon him in his individual character, and was one that the law imposed upon him independently of his agency or employment; then he is liable.”

Appellant urges that although these individual defendants were charged by the corporation with the duty of erecting this stand,, and the acts complained of consisted in omitting to provide for a. construction of sufficient strength to withstand the strain to which-it was subjected, nevertheless they were guilty of misfeasance, rather than nonfeasance. With commendable diligence, he has-brought to our attention authorities in other jurisdictions tending to support his contention; but we refrain from their consideration because it is our understanding that the courts of this state have-determined otherwise. In Murray v. Usher, 117 N. Y. 542 ; 27 St. Rep. 928, the plaintiff, while employed upon a platform in-a sawmill belonging to two of the defendants, sustained injuries, by reason of its falling, 'which occasioned his death. His administrator brought an action against the owners of the mill, and one Lewis, who was their superintendent having general charge of the business, and being specially instructed to look after the necessary repairs, which included the duty of inspecting the platform from time to time to see that it was kept in a safe condition. Judgment was recovered against all of the defendants. In the court of appeals the question of the superintendent’s liability was considered; the court holding that the omission of the superintendent to perform the duty devolving upon him constituted nonfeasance, for which he was not liable in a civil action, but that his employers were. That case, it will be observed, is directly in point with the one under consideration. Lewis, the superintendent, neglected to perform the duty which his employers had devolved upon him, and such neglect led to the fall of the platform, which caused plaintiff’s injury. In this case the defendants were engaged in superintending the erection of the stand. As more than one was charged with such duty, they were called a committee. But the duties devolved upon them were of the same general character asín Murray's Case, and the charge is that the fall of the stand was due to their neglect to properly discharge the obligations upon them by the corporation. In Burns v. Pethcal, 75 Hun, 437; 57 St. Rep. 661, an attempt was made to recover of a foreman for the-loss of the life of an employe, due, it was charged to the omission of the foreman to warn the dead man of the danger of working in a particular place. There was a recovery at the circuit, but the general term reversed the judgment; holding that a servant is not liable jointly with his master, where the negligence of the servant consists of an omission of a duty devolved upon him by his employment, although he may be liable where he omits to perform a duty which rests upon him in his individual character, and one which the law imposes upon him independently of his employment. These cases fully sustain the decision of the trial court.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., concurs. Follett, J., dissents.  