
    Mary Walsh, as Guardian ad Litem for Michael E. Walsh, Respondent, v. William McGarry, Appellant, Impleaded with John Cooper.
    
      Negligence — injury from the falling of flue pipes, piled on a sidewalk, upon a child led hy an adult—proof that the adult saw that .the pipes were “ hanging over ” — the fact that the complaint is improperly dismissed as to a co-defendant of an appellant does not require a reversal of the judgment against him.
    
    In an action to recover damages for personal injuries sustained by the plaintiff, an infant, while being led along the sidewalk of a public street by an adult, in consequence of the fall of several flue pipes from a pile of building material which had been placed upon the sidewalk by one of the defendants and was maintained thereon by the other defendant the adult who accompanied the plaintiff testified in answer to the question whether there was' any apparent reason why the flue pipes fell, that “they were roughly put up there; they were hanging over.” There was a clear space of ten or eleven feet of sidewalk which would have enabled them to avoid the danger entirely.
    
      Held, that the adult was not, as a matter of law, guilty of contributory negligence imputable to the plaintiff, especially as it did not appear that the adult noticed the condition of the pile until after the accident happened.
    On the trial of the action the complaint was dismissed as to the defendant who placed the material upon the sidewalk, and the defendant who maintained the material there was held liable.
    
      Held, on an appeal by the latter, that if he was properly held liable, the fact that his co-defendant should also have been held liable did not furnish a basis for the reversal of the judgment.
    Appeal by the defendant, William McGarry, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, entered in said court on the 26t.h day of December, 1901, upon the decision of the court for the sum of $512, against the defendant McGarry.
    The action was brought to recover damages for personal injuries sustained by the plaintiff.
    
      William J. Bogenshutz, for the appellant.
    
      Charles Brand, for the respondent.
   Willard Bartlett, J.:

The plaintiff, an infant, was injured while walking on a public street in the borough of Brooklyn, by the fall of several flue pipes from a' pile of building material which had been placed upon the sidewalk by the defendant Cooper and was maintained there by the defendant McGarry. Upon the trial the complaint was dismissed as against the defendant Cooper, but the defendant McGarry was held liable in damages to the extent of $500. '

At the time of the accident the child was walking in company with ail adult, who testifies that as they passed the pile the flue pipe fell without being touched by either of them. This witness, when asked whether there was any apparent reason why the flue pipe fell down, answered : “ They were roughly put up there. They were hanging over.” As the witness was leading the child by the hand and saw that the pipe was badly piled and overhanging, it is contended that the witness was guilty of contributory negligence which is impiitable to the child, inasmuch as there was a clear space of ten or eleven feet of sidewalk, which would have enabled them to avoid the danger entirely. It does not follow, however, as matter of law, that there was any contributory negligence in the case. The evidence does not indicate that the condition of the- pile was perceived until after the pipe fell, and negligence is not necessarily to be inferred on the part of a traveler upon á public street because he assumes that building material thereon has been placed in such a manner that it will not fall upon the passerby.

Questions similar to those which are raised by the appellant were considered by this court in Dunn v. Ballantyne (5 App. Div. 483) and Ramsey v. National Contracting Co. (49 id. 11), and a reference to those cases will suffice to show why this judgment should be affirmed. The appellant is probably right in contending that if he is liable the defendant Cooper ought to have been held liable also, but this affords no ground for a reversal of the judgment before us.

The judgment should be affirmed j with costs.

All concurred.

Judgment of the Municipal Court affirmed, with costs.  