
    Peter Kolbrener, Respondent, v. Herman D. Bob and Louis Baskind, Appellants.
    First Department,
    July 9, 1915.
    Negligence — injury by fall of material down hoisting shaft — Building Code of New York construed — duty to close doors of shaft — when tenant not liable for acts of subtenant.
    Although sections 95 and 96 of the Building Code of the city of New York require trap doors to be placed in shafts used for hoisting apparatus in buildings and require that such shafts be protected by substantial guards, etc., said Code does not require such doors to be closed when not in use during business hours, but only to be closed at the end of business on each day.
    Hence, a lessee of a building containing such shaft who sublets a portion of the building is not liable to a workman in said building for personal injuries received by a fall of material through the shaft under which he was passing, caused by the fact that a subtenant, after, hoisting the material, had failed to close the doors.
    The lessee was under no duty to close the trap door, or to supervise the work of a subtenant while using the hoistway during business hours, and a refusal of the court so to charge was reversible error.
    Appeal by the defendants, Herman D. Bob and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.
    
      F. Wright Moxley [ James J. Mahoney with him on the brief], for the appellants.
    
      Moses Feltenstein [Isadore Apfel with him on the brief], for the respondents.
   Laughlin, J.:

The appellants were lessees for a term of five years of the six upper floors of a loft building known as Ho. 66 Columbia street, borough of Manhattan, Hew York, and they sublet the several lofts to various tenants. On the 4th day of October, 1909, the plaintiff did some plumbing work on the third floor for one of the subtenants. Access to the building was through a door on the ground floor and along that floor under a shaft or hoistway of the dimensions of four by five feet which •extended to the roof and was used by the tenants for hoisting and lowering their goods by means of a rope passing over a pulley at the top of the shaft. Early in the afternoon the plaintiff after finishing his work descended the stairs and while passing out on the ground floor under this hoistway was struck by a bag or bale of goods, consisting of canvas or woolen linings and weighing some three or four hundred pounds which fell from the sixth floor. The recovery was for the injuries thus sustained. He had been in and left the building that day shortly before and had observed the hoistway and evidently inferred from the suspended rope the use which was' made of it and he took the precaution' to observe before passing under the hoistway that the rope suspended in the shaft was stationary and that the hoist apparently was not in use. Three bales of goods, including the one which fell, had just been delivered by express to tenants on the sixth floor. An employee of the tenants, on being notified of the arrival of the goods, lowered a tongs attached to one end óf the rope and the expressman placed the bales of goods on the tongs one on top of another and the employee pulled them up and swung them in onto the sixth floor leaving them, on taking them from the tongs, one on top of another as they came up, within about one foot of the edge of the shaft and then proceeded to drag them into his employer’s shop on that floor. On returning, after thus removing the top bag, he discovered that the middle bag had disappeared. It evidently had rolled off for it was down at the foot of the shaft.

The action was originally brought against the owner, the tenants whose employee was handling the goods which fell, and the appellants; but the record shows that the other defendants had been eliminated on the plaintiff’s motion.” A former verdict in favor of plaintiff was set aside by the trial court on the ground that it was excessive and against, the weight of the evidence. This court affirmed the order without opinion (159 App. Div. 901); but the questions now raised on the defendants’ appeal were not then presented and could not be considered.

Manifestly the appellants are not liable for the negligent acts of the employees of their tenants. The only possible theory on which they could be held liable would be for the condition of the premises. The leases to the subtenants are not in evidence; but it is perhaps to be inferred that the appellants furnished the hoistway and hoisting apparatus for the use of all their tenants inasmuch as each trial of the case has been had on that theory. On- the trial now under review it was claimed that the hoistway was not constructed and maintained in accordance with the requirements of sections 95 and 96 of the Building Code. (See Cosby’s Code of Ordinances [Anno. 1914], 217, 218, §§ 95, 96; now Building Code, § 373; Cosby’s Code of Ordinances [Anno. 1915], 96, § 373.) On the part of plaintiff evidence was given tending to show that the hoistway was not constructed in accordance with the provisions of section 95 of the Building Code in that it was “not inclosed in walls constructed of brick or other fireproof material and provided -with fireproof doors” and that “the openings thereof through and upon each floor ” were not “ provided with and protected by a substantial guard or gate and with such good and sufficient trapdoors as may be directed and approved by the Department of Buildings ” as required where the hoistway is not so inclosed by brick or other fireproof walls and with fireproof doors; but that evidence was controverted, and thus questions of fact Were presented. The court refused to instruct the jury that if, on their determination of the controverted facts, trap doors were required, they were not required to be closed until the close of business. That is the only requirement of the Building Code with respect to closing the trap doors; but it is evident that the attention of the learned trial court was not drawn to that provision and evidently was inadvertently overlooked, for the remarks made by the court in declining the request indicate that the court deemed the question as to when the doors should be closed one to be determined exclusively by the test of reasonable care. The Building Code required that the guards or gates around the shaft at each floor should be kept closed when not in use, and by providing in the same connection that the trap doors should be closed at the close of business on each day manifestly it was recognized that it would not be reasonable to require that they be kept closed when not in use during business hours, for that would require work at all floors before and after using the hoistway for a single haul at one floor. The jury must have understood from the ground assigned by the court for denying this request that if trap doors were required the duty devolved on the appellants not only to furnish them but to keep them closed if reasonable care required that they should be closed, for the court had already refused to instruct the jury that the duty of closing trap doors was on the party using them, and said on declining so to charge: “ I leave that entirely for the jury upon the question as to whether or not these defendants were negligent and exercising the degree of care that a reasonably prudent person ought to exercise under the circumstances, and that does not mean, gentlemen,- the highest degree of care; ” and further said: “ If you find that the condition of the shaft was not reasonably safe, and that this accident happened because of that condition, you may find the defendants guilty of negligence.” We are of opinion that no duty devolved upon the appellants to close the trap doors or to supervise the work of their tenants in using the hoistway during business hours. If the appellants properly constructed and maintained the hoistway they are not liable for accidents resulting from the use thereof by their tenants or others. The refusal of the court to charge as thus requested constitutes prejudicial error and requires a reversal.

It follows that the judgment and order should be reversed- and a new trial granted, with costs to appellants to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  