
    Adela Kupfersmith, as Sole Administratrix, etc., of Charles Kupfersmith, Deceased, Respondent, v. Isaac A. Hopper & Son, Incorporated, Appellant.
    First Department,
    November 22, 1907.
    Master ancf servant — death, by fall of building material — evidence — conditions in other part of building inadmissible—relation of municipal superintendent of buildings to defendant.
    In an action against a master for the death of an employee killed by the fall of material during the construction of the west wall of a building, it is error to allow the plaintiff, on cross-examination, to ask the defendant’s architect questions tending to show that the south wall of the building was. defective.
    So, too, it is error to admit evidence that the defendant corporation was named after the municipal superintendent of buildings, and that he was interested in the building, for such evidence is irrelevant on the issue of negligence; and is prejudicial in implying that said superintendent had failed to perform his . official duties through personal interest in the building.
    Appeal by the defendant, Isaac A. Hopper & Son, Incorporated, 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 2d day of April, 1907, upon the verdict of a jury for $18,000, and also from an order entered, in said clerk’s office on the 2d day of April, 1907, denying tire defendant’s motion for a new trial made upon the minutes.
    
      J. S. L' Amoreaux [Daniel E. Wing with him on the brief], for the appellant.
    
      Stephen C. Baldwin, for the respondent.
   Laughlin, J. :

This is a statutory action to recover for the death-of Charles Kupfersmith. The decedent was a bricklayer by trade and entered the employ of the defendant about one o’clock in the afternoon on the 30th day of April, 1903, and within three hours thereafter received the injuries which resulted in Iris death. The defendant is a corporation and its business is that of a building contractor. It was engaged in constructing the “ Flattau Building ” at the southeast corner of Thirteenth street and University place in the borough of Manhattan, Hew York. The building was of steel construction with exterior walls sixteen inches in thickness, constructed of .brick except the. outer four inches^ which were of stone. The walls had been constructed to an elevation a little above the second story about a week before the day of the accident and were ready for a cornice, consisting of two layers of terra cotta work. The lower course of terra cotta had been laid before the decedent commenced work. It had a bearing • of seven and one-half inches on the wall and projected an equal distance beyond the wall, and the wall back ■of the layer of terra cotta had been constructed of brick and mortar up to the level • of the upper surface of that layer of terra cotta. The upper course of the terra cotta work was to be con structed of brick blocks weighing from forty to sixty pounds, from sixteen to eighteen inches in length and from ten to twelve inches in' thickness and about' the same width. They were to be placed on the wall at right angles, one end projecting out over the lower layer of terra cotta and the other' resting upon it. The blocks -were hollow lengthwise and also had'-holes through them crosswise. Part of the upper layer of terra, cotta had bepn constructed upon the Thirteenth street wall and four' blocks had been set on the University place wall, ■ extending from Thirteenth street southerly. . Along, the outer side of the wall on- University ■ place a scaffold extended, consisting of a ladder eighteen feet in length, with boards resting on the rounds at the south, and to the north of boards extending from the ladder to timbers projecting from the building. In constructing . the terra cotta work two brick layers worked together, one standing on the scaffolding to align and point the work, and the other on the inside to put the blocks upon the wall and secure them in place. The defendant’s foreman directed -one Donaldson and the decedent to. proceed with the construction of the terra cotta work, and, according to the testimony introduced in behalf of the plaintiff, the decedent was. specifically directed to work upon the scaffold and Donaldson inside. The decedent climbed over the wall from the second story onto the scaffold and they continued the work southerly along University place from the point to which it had been finished near the Thirteenth street line. Two other bricklayers were similarly engaged

in laying the second tier of the terra cotta work from the southerly end of that wall northerly, to meet Donaldson and the decedent. The testimony introduced in behalf of the plaintiff is not accurate with respect to the length of the blocks of terra cotta forming the second tier, or their bearing upon the'wall. It tends to show that they were, as already observed, from sixteen to eighteen inches in length, and. that from live and one-half to eight inches of the inner end rested directly over the wall and the rest projected beyond. When the blocks were installed in place on the wall, cement mortar was plastered on the under side, which would tend to some extent to hold them from tipping over the outer edge ; but it is evident that if blocks of .this weight and length were only supported five and one-half inches by the wall proper and projected beyond ten and one-half inches, the center of gravity would be so far outside of the wall that they would likely fall and take the lower layer of the terra cotta-with them unless it was held in place very securely. The evidence of the defendant on that subject is' the more probable It is to the effect that the blocks were twenty inches in length and that they had a bearing on the wall of half their length. With the terra cotta blocks in place, the wall was so high' above where the decedent- and Donaldson were standing that each could only see the top of the other’s head. After Donaldson put two or three blocks in place on the wall, he would run a small iron pipe or rod through the hole therein lengthwise of the wall and fasten a wire from an eighth to a sixteenth of an inch in diameter around the iron pipe or rod and draw -the same tightly down over the inner edge of the wall and fasten it to a ten-penny nail fz-ozn three to three and one-quarter inches in length, driving it into the brick wall on the inside well down where the mortar had set, for the purpose of holding the blocks izz place and preventing their tipping over into the street. According to the testimony of Dozialdson this was the 'manner in which he was directed by the foreznan to do the work. After they had thus set in place frozn twelve to fifteen blocks, all-of the blocks they had laid and some that had been laid previously bulged out in a funnel shape and fell upon the scaffold, breaking and carrying the planks and decedent down with thezn. The evidence does not show with any degree of certainty the precise cause of the accident. There is ho express evidence that Donaldson was negligent either in placing the blocks, inserting the iron pipe or rod or fastening the wire thereto, or inserting the nails in the wall and attaching the wire; nor on the other hand is there any evidence that any wire broke or nail gave way or that any of the materials furnished by the defendant for the use of its employees was defective. The plaintiff claims that the method employed by the defendant in anchoring the blocks ripon the wall temporarily until the wall should be filled in behind and set which would hold them in place securely was unsafe, and gave evidence tending to show that the usual method of anchoring such blocks was by an iron anchor made for the purpose, projecting from the hole in the block back upon the wall to be held in place by filling in upon it the material of which the inner part of wall was to be constructed. The defendant, however, called numerous witnesses who testified ■that the method adopted by it was in common use,' was adequate for the purpose and more safe'than using iron anchors. If the accident was caused owing to the failure of Donaldson to perform his duties properly, of course, defendant would not be liable, but if the nails'and wire and manner of fastening the same were not suitable or proper then the jury might have found that to be a contributory cause for which defendant would be liable.

It is also claimed that the defendant was negligent in not closely following up the work which the decedent and Donaldson were doing by having the wall filled in behind the row of terra cotta "blocks which they were setting. .The evidence indicates that this should have been done and the foreman of the defendant claims that he directed another employee to do it and saw him doing ,it. Other evidence in the case,, however, tends to show that the work was not done and presented a question of fact as to whether the foreman ordered it done. The evidence shows that the decedent and Donaldson were instructed by the foreman to lay the blocks' as rapidly as possible and that he informed them that he would send bricklayers to fill in the wall behind when they had sufficiently advanced with the work to require it. It does not appear that the decedent knew that this had not been done or that the work had been so far advanced that it should have been done. If the failure tp fill in the wall behind these blocks was the cause of the accident then perhaps the defendant would be liable under the Employers’ Liability Act (Laws of 1902, chap. 600) for the failure of its foreman to direct that it be done, and so also if such negligence concurred with the negligence of a coemployee in causing the accident. On this branch of the case probably a question of fact was presented for the consideration of the jury. I am of opinion, however, that an error was committed in the reception, of evidence which requires anew trial.

The architect of the building-was called as a witness for the defendant. He testified to the manner in which the building was constructed and. that the plans and specifications were followed. On cross-examination he was asked by counsel for the plaintiff whether, representing the owner of the building, he found that the south wall was built according to the plan. This was objected to as immaterial and not involved in the issue. The objection was overruled, counsel for defendant excepted and the witness answered that it was not. It is to be borne in mind that the accident occurred on the west wall of the building and was in no manner connected with or caused by any condition of the south wall. The witness was then further asked, on cross-examination, whether it was not true “ that the south wall of that building in hurry construction was such that it was all out of alignment and that a workman was put upon the job to cut the bricks down, in order, if possible, to assist the eye in the belief that there was a straight line there ? ” This was objected to as incompetent, improper and not the subject of cross-examination. The objection was overruled,.counsel for defendant excepted and the witness answered, I cannot answer that question the way it is put, sir.” The witness was then asked, What was there wrong about the south wall ? ” to which counsel for defendant objected upon the same grounds, stating that he desired the same objection to each, question relating to the construction of the south wall, and that he desired an exception thereto. This, suggestion was apparently acquiesced in. The witness answered, “ The south wall, during a wind storm was blown out of plumb, during one night’s wind storm and the Building Department put a survey on the building. The survey was made and the thing was rectified in accordance with their demands and to their satisfaction.” The witness was then asked how it was rectified and he replied that portions of it were taken down “as it was bad, and those portions, which you saw or spoke of being cut off, were portions they did not object to, and were cut off simply to make an alignment to the front.” Counsel for the plaintiff then "pointedly asked if the witness intended to testify that the building department did iiot object to the alignment being made more perfect by means of chopping off- the bricks on the side, and he answered in the affirmative. Counsel for the plaintiff then showed that the superintendent of buildings was Isaac A. Hopper, after whom the defendant corporation was named, and who appears to have been the party principally interested therein. This evidence was prejudicial, as'it not only showed negligence on the part of the defendant in the construction of part of the building,, which had no connection with the accident and was calculated to lead the jury to infer that the entire work was constructed hastily and negligently, but also tended and evidently was intended to prejudice; the jury against the defendant upon the. theory that Isaac-A. Hopper, as superintendent of buildings, failed to perform his official duty with respect to contract business in which he was directly personally interested. On account of error in the reception of this evidence, the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., -Clarke and Ho.ughton, JJ., concurred; Ingraham, J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant' to abide event.  