
    CLARE against THE NATIONAL CITY BANK.
    
      New York Superior Court;
    
    
      General Term, January, 1873.
    Pleading in Actions eor Negligence. — Admission and Denial.—Construction oe Pleadings.
    In a pleading in respect to the negligent construction or alteration oí a building, an.allegation that a party “ caused ” the alterations, does not necessarily imply that the workmen engaged in the work were in the service of such party, or that such party was responsible for their negligence.
    The plaintiff alleged that the defendants, owners of a building, were making alterations therein, and negligently omitted to provide the necessary barriers on the sidewalk, in consequence of which plaintiff, when passing, was injured by a board negligently dropped from the building by defendant’s employees. The answer admitted that the defendants were owners of the building, and “that they' caused alterations” in it at the time alleged; and denied every allegation riot thus admitted. Held, that under the issue thus formed, defendants might prove that the work was not being done by them nor under their direction, but by contractors over whose workmen they had no control.
    In construing a pleading for the purpose of determining the admissibility of evidence, a restricted meaning should not be given to words which are clearly susceptible of a more liberal construction, . unless the whole pleading shows that the language was used in its restricted sense; especially so when such restricted interpretation would exclude a defense on the merits.
    
      Wm. K. Clare sued the National City Bank, to recover damages for injuries sustained by him by the fall of a board from their buildings in Wall-street, as he was passing upon the sidewalk, while the buildings were undergoing repair or alteration. The complaint alleged that defendants owned and occupied the buildings, and that at a time named they were “making alterations and repairs upon their said buildings,” by reason of which it was unsafe for persons to pass on the sidewalk, which defendants knew, but that they wrongfully omitted to provide barriers or warnings ; and that plaintiff, while defendants and their employees were engaged in making the repairs, was injured when lawfully and carefully passing over the sidewalk, by a board negligently thrown or falling from the building, by the negligence of the defendants or of their employees.
    The answer of the defendants stated, 1. “that they were and still are the owners, and in part the occupants of the premises specified in the complaint, and that they caused alterations in and upon the same at the times mentioned in the complaint.”
    2. “That they deny each and every allegation m the complaint contained not before admitted.”
    On the trial, after the plaintiff rested his case, the defendant called as a witness Moses Taylor, who testified that as president of the bank he had to do with the alterations. The witness was then asked, on his direct examination: “ Q. Was the New York Life Insurance and Trust Company equally interested with the City Bank in the work that was done ?”
    The question was objected to by plaintiff’s counsel as immaterial; the objection was sustained, the court saying, “ So far as the proposed evidence is intended to show who caused the occurrence, I shall admit it, but not for the purpose of proving that the work was not being done by the defendants or under their direction.”
    The judge also excluded evidence offered by defendants tending to show that the work was done for them by contract, under independent contractors, over whose workmen the defendants had no control, the workmen being responsible to the contractors.
    The defendant’s counsel then moved to amend his answer by striking out the last clause of the first article. The motion was denied.
    In his charge to the jury the judge said, “Under the pleadings in this action I have held, and I charge you, that the defendants are responsible for the careful manner in which the workmen whom they ‘ caused ’ to be put upon the premises performed the work assigned them.”
    
      Wm. Henry Arnoux, for the appellants.
    
      Luther R. Marsh, for the respondents.
   By the Court.—Van Vorst, J.

The rulings of the learned judge on the trial, in the rejection of the evidence offered by the defendants, and in his charge to the jury, proceded upon the construction he gave to the word “caused” in the answer. He held substantially that it was an admission on the defend-ants’ part that the workmen and persons actually engaged in the alterations, were the servants, and in the employment of the defendants. If he was correct in that construction, his rulings should not be disturbed.

In construing particular portions of its language, other parts of the pleading are often necessary to be considered. In this case, the answer contains a general denial of each allegation of the complaint except what is specifically admitted.

The complaint alleges that the defendants “were making alterations and repairs upon their building.” This is denied, the defendants at the same time averring that they “caused” alterations in and upon the the building. If it was the intention of the pleader to have admitted the “making” of the alterations, then there was no occasion for the qualification.

That the defendants “ caused ” the alterations, does not necessarily imply that the workmen engaged were in their service, or that they are responsible for their acts, or negligence.

If the work was done under independent contracts, made by the defendants with carpenters and masons, who undertook to make the repairs, and engage the necessary workmen for the purpose for a consideration to be paid them by defendants, such workmen would not be the servants of the defendants. Yet in such case it might truly be said that the defendants “caused” the alterations.

The determination and action of the defendants to have the alterations made, may be a formal or primary cause, yet efficient agents were required for the completion of the work. Causing work to be done is not necessarily its performance by the projector. One may cause a building to be erected, and yet not be the builder.

But it is unnecessary to proceed further in this direction.

The severity formerly prevailing in regard to pleadings has been relaxed under the Code. Section 159 of the Code provides as follows: “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.”

The fair application of the rule here indicated, would seem to suggest that in construing a pleading a restricted meaning should not be given to words used, clearly susceptible of a more liberal construction, unless the whole pleading shows that the language was used in its restricted sense, especially so when such restricted interpretation would exclude a defense on the merits. For it is to be observed that" the construction of a pleading under this section of the Code is for the purpose of “determining its effect.”

In Richards v. Edick, 17 Barb., 270, Judge Gridley says, “ The rule that once prevailed that a pleading should be construed most' strongly against the pleader .is now abrogated by the Code.” In Allen v. Patterson, 7 N. Y. (3 Seld.), 480, the court says, “The language of a pleading is to have a reasonable intendment and construction; and when a matter is capable of different meanings, that shall be taken which will support the declaration, not that which will defeat it.”

If the language of the answer was “indefinite or uncertain” which would include ambiguousness, the remedy of the plaintiff was by motion to have the same made more definite and certain by amendments (Code,. § 160).

The fair construction of this answer is that the defendants deny that they “made the alterations and repairs,” although they caused them to be made.

We think that the learned judge erred in excluding the evidence offered by the defendants tending to show that the repairs were made by contractors under them. For this reason there should be a new trial.

In this view it is not necessary to examine and pass upon the other exceptions taken by the defendants to the evidence or to the judge’s charge.

Order accordingly.

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

Monell and Sedgwick, JJ., concurred.

Judgment accordingly. 
      
       The provision of the Code applied in this case has been often overlooked, and the old rule that a pleading is to be construed most strongly against the pleader reiterated (Beach v. Bay State Co., 10 Abb. Pr., 71 ; S. C., 30 Barb., 433 ; Winter v. Baker, 50 Barb., 432 ; Bunge v. Koop, 48 N. Y., 225). And in Spear v. Downing, 12 Abb. Pr., 437 ; S. C., 34 Barb., 522, it was held that the liberal rule of the Code applies only to matters of form. But see Conaughty v. Nichols, 42 N. Y., 83, where other cases are collected.
     