
    The City of Buffalo against Isaac Holloway.
    
      Municipal corporation; liability for negligence of contractor. .
    
   The city of Buffalo, in its complaint, stated, that the defendant entered into an agreement with the city to. construct a sewer in one of its streets, and entered upon the work, making a deep pit or hole in the street. That it then became and was his duty to keep lights and barriers about the work, to prevent persons passing in the street from unavoidably falling into the pit or hole. That he neglected his duty in this respect, and carelessly left the same unguarded, whereby one A. F. Tripp unavoidably fell into said pit, and was greatly injured. That Tripp sued the city, and recovered $1,067 for such injury, which the city paid ; and judgment was demanded for that sum and interest. The defendant demurred.

The demurrer was sustained, on the ground that it did not appear from the complaint that the recovery was had in favor of Tripp, against the plaintiffs, on account of any matter for which they were liable.

That no charge of negligence, and no allegation of duty, on the part of the city, appears to have been made in that action, and that no recovery could properly be had against the city without such charge.

That the city was not liable for the negligence of the defendant, as he was engaged in the execution of an independent contract for the performance of the work, and the city had no control over -him or his workmen as to the manner of such performance.

Whether the circumstances mentioned in the complaint would have sustained such an allegation in the suit of Tripp, against the plaintiffs, it was not necessary to decide, as without such allegation that matter could not have been in issue ; and by the present complaint, the recovery in that suit appears to have been had on account of the negligence of the contractor, for which the plaintiffs were not liable.  