
    Sarah N. Charlock, Resp’t, v. Edward Freel, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    1. Negligence—Defective stbeets—Liability of contbactob.
    Where, in an action brought to recover for personal injuries, the defendant was a contractor, and had contracted to make a sewer in the streets of a city, the contract provided that he should save the city harmless in consequence of any negligence in guarding the same. The contract provided for extra work, and under this provision, the grade of certain streets was raised. In doing this, an excavation was caused. This excavation' was permitted to remain, and the plaintiff passing along in the night time, fell into it. The work was to be done under the direction of the city engineer, Reid, that the fact that the work Was to be done according to the plan of the engineer, does not relieve the contractor from due care in its performance.
    2. Same—Lack of due cabe—Liability fob.
    Where there is a lack of due care on the part of the contractor, he is liable for injuries resulting from such neglect.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, rendered at the Bangs county circuit, and from an order denying'a new trial on the minutes. ■
    
      William C. De Witt, for .app’lt; C. J. Patterson, for résp’t.
   Barnard, P. J.

There is no basis for a claim under the evidence that the defendant was a mere servant and agent of the city, and not liable for omissions of duty in respect to the obstruction in question. The defendant had contracted to make a sewer in one of the streets of the city of Brooklyn, by a contract with the city. This contract provided that the contractor should give security to save the city harmless from “ all suits and actions,” * * * in consequence of any negligence in guarding the same. The contract provided for extra work, and under this provision the grade at the intersection of Polaski street and Tompkins avenue was raised. The defendant, in doing this extra work, raised first the curb stone to the required height. The flag stones next the curb were laid on the sidewalk. Water collected during a shower next the curb, and an attempt was made to open a way for the water to run into the street. This was done by defendant’s employees. They took away the dirt to accomplish • this purpose. The water sunk under the curb,' and left an excavation some fifteen or eighteen inches in depth. This excavation was permitted to remain from Wednesday until Friday night, when the plaintiff fell into- it and broke his arm. The work was to be done under the direction of the city engineer. The extra work falls under the contract, and was to be carefully done, and the fact that the work was to be done according to the plan of the engineer, did not relieve the contractor from due care in the performance of the work. Kelly v. The Mayor, 11 N. Y., 432.

The case of the City of Buffalo v. Halloway, 3 Selden, 493, is not adverse to this. There a contractor who had been negligent in his duty, and in consequence the city of Brooklyn had been-» subjected to damages, was held not to be liable to an action to reimburse the city, that his agreement was- only to construct the work with reasonable skill, and "that the city was bound to protect the travelers from danger -during the construction. That the contractor did not do his work with due care, has been found by the jury, and the evidence abundantly justified-the finding, and'out of ■ this the defendant’s liability grows. Mairs v. Manhattan Real Estate Association, 89 N. Y., 498.

The judgment should, therefore, be affirmed, with costs.

All- concur;  