
    Israel Mehler, Respondent, v. Henrietta Fisch, Appellant.
    (Supreme Court, Appellate Term,
    January. 1910.)
    Master and servant: Master’s liability for injuries to servant — Actions — Presumptions and burden of proof — As to liability for servant of independent contractor: Liability for injuries to third persons — Relations of parties — Independent contractors.
    Independent contractors, engaged in painting a house, are not servants of the owner arid the relation of principal and agent does not exist between them.
    The non-liability of the owner in such a case for the negligence of the contractors is not an exception to the rule of respondeat superior, nor need the owner, in an action for personal injuries brought against him by an employee of the contractor, prove any facts to bring himself within an exception to that rule.
    Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered upon a verdict in favor of the plaintiff and from an order denying a motion for a new trial.
    Herrick C. Allen, for appellant.
   Eespondent submitted, without brief, on the record and the appellant’s brief.

Lehman, J.

The plaintiff alleges that the defendant, her agents and employees were engaged in painting the front wall of defendant’s house, and, while so engaged, defendant, her agents and employees, conducted the work so negligently that a scaffold fell down and injured the plaintiff. At the trial it appeared that the painting was being done not by the defendant’s servants, but by independent contractors. “ The rule that where the relation of master and servant or principal and agent does not exist, but an injury results from negligence in the performance of work by a contractor, the party with whom’he contracts is not responsible for his negligence or that of his servants, is well established by the authorities in this state.” Berg v. Parsons, 156 N. Y. 109, 112.

The trial justice recognized the general rule but submitted the case to the jury upon the theory that the defendant was nevertheless liable for the acts of the contractors, if the jury believed that, in spite of her contract that the work should be performed by independent contractors, she, through her husband, supervised and took part in the work, or if the defendant did not exercise care in the selection of experienced and competent contractors.

I do not know whether the respondent seeks" to sustain the judgment upon both theories or upon either because he has submitted the case on appeal without argument or brief; Upon the first point the justice’s charge was correct, but there is not sufficient evidence to sustain a verdict for the plaintiff upon this point. The plaintiff claims that he heard the defendant’s husband order the contractors to hoist the scaffold, hut he does not state that the defendant’s husband was even present at the time of the accident. Plaintiff’s own witnesses do not corroborate him on this point, and his testimony is directly and circumstantially denied by the husband and by both contractors. I do not think that the respondent could seriously contend that the plaintiff has borne the burden of producing a preponderance of evidence upon this point. Flor can the judgment be sustained upon the theory that the owner did not exercise due care in engaging competent contractors. Even if the owner is under a duty, the plaintiff has not shown any failure to perform it. The work done here was not hazardous nor requiring great skill; the contractors, while not long in this country and only just beginning to work for themselves, testify that they have had long experience as journeymen in work of this kind. Absolutely the only evidence of incompetence is the fall of the scaffold.

Under such circumstances, a judgment against the defendant could be sustained only upon the theory that the exemption of liability of an employer for the acts of an independent contractor is an exception to the rule of re spondeat superior, and that the defendant must show facts which will bring him within the exception. • I do not think that that is the law. The employer is not liable for the acts of the contractor, because the relation of principal and. agent does not exist. If he is liable in this case, it is only for his own acts; and the plaintiff must' show that he owed him a duty and has failed to perform such duty.

Judgment should be reversed and. a new trial ordered, with costs to appellant to abide the event.

Giegerich, J., concurs in result.

Dayton, J.

I concur on the ground that the evidence is insufficient to warrant a finding that Mr. Eisch, defendant’s agent, exercised any control over the work or gave any directions concerning it, or that the contractors were incompetent.

Judgment reversed, and new trial ordered.  