
    John P. McDonald, Respondent, v. Degnon-McLean Contracting Company and The City of New York, Appellants.
    First Department,
    November 4, 1910.
    Evidence — when evidence rebutting testimony of one defendant not admissible as against codefendant.
    Where a city made codefendant with a municipal contractor in an action to recover for his negligence has rested its case on documentary evidence and produced no witnesses, it is error to admit, as against the city, evidence adduced by the plaintiff in rebuttal of testimony given by the contractor and bearing upon the usual method of doing the work and the usual precautions taken to guard the public against danger.
    Appeal by the defendants, the Degnon-McLean Contracting Company and ■ another, 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 12tli day of April, 1909, upon the verdict of a jury for $2,500, and also from orders entered in said clerk’s office on the 7th and 21st days of April, 1909, denying, respectively, the defendants’ motions, for a new trial made upon the minutes,
    
      
      Terence Farley, for the appellant City of New York.
    
      James F. Donnelly, for the appellant Degnon-McLean Contracting Company.
    
      John M. Ward, for the respondent.
   Per Curiam:

This case was before this court upon a prior appeal and is reported in 124 Appellate Division, 824. Upon the second trial of the action the plaintiff has recovered a verdict against both of the defendants in the sum of $2,500, and -from the judgment entered upon such verdict the present appeal is taken.

The record in the present case varies from the former one in some important particulars, of which the following may be instanced.

. There was proof upon the second trial from which the jury were warranted in finding that there was no litter or rubbish present in front of or near the spot where the plaintiff attempted to cross the street, nor was there anything .present at that spot to call his attention to any unusual danger there. The testimony was fuller as to the distance between the red lights which were stationed along the line of the work and it was established that the red light nearest to Sixth avenue was obscured from the view of the plaintiff by the fact that it was hanging against the side of a plank. It furthermore was proven upon this trial that there are usual and ordinary precautions taken to guard such an excavation as the one in question and to prevent accidents thereat, and that such precautions consist either of planking over the excavation, tying ropes to standards around the excavation, of putting up wooden standards with strips along the top, making a barrier in the shape of a fence.

Testimony was also given showing how at least one of these precautions could have been used to advantage under the conditions which existed upon the- work in question. The questions of fact were submitted to the jury in' accordance with the principles laid down by this court in its prior opinion arid there are no valid exceptions, so far as the defendant construction company is concerned, nor can the verdict against it be set aside as against the weight of evidence. *

The questions involved in the trial were purely questions of fact, and as was said in Dorwin v. Westbrook (11 App. Div. 394; affd., 158 N. Y. 742) : “ As the jury are the final arbiters of the facts, the. court must, after affording them reasonable opportunities to compare their own opinions of the facts with those held by the appellate court, finally accept the judgment of the jury.”

With respect to the defendant the City of Hew York, however, error was committed by allowing the testimony of the witness Southard to be received against it in the face of its objection and exception.

The city rested its case after offering in evidence certain documentary proof, but produced no witnesses. The witness Southard was called by plaintiff in rebuttal of testimony adduced on behalf of the defendant Degnon-McLean Company, which bore upon the question of the usual and ordinary method of doing the work which was then in progress .in Forty-second street and in regal’d to the precautions which were usually taken to guard against dangers to the public in the prosecution of such work. His testimony was properly received for it was proof of the procedure actually followed upon such work and was not mere speculation or hypothesis. It was not, however, admissible against any defendant except the one whose testimony was thus sought to be rebutted, and such objection was at once taken by the counsel for the city, and the request made that the jury be instructed that the rebuttal evidence was not to be taken as against the city.

The denial of this request constituted error and, exception having been duly taken, the judgment so far as it affects the city of Hew York must be reversed.

The judgment and order appealed from are affirmed, with costs to the respondent as against the defendant Degnon-McLean Contracting Company, and reversed as' to the defendant the City of Hew York, and a new trial ordered, with costs as to the latter defendant to abide the event.

. Present — Ingeaham, P. J., Claeke, Soott, Millee and Dowling, JJ.

As to defendant Degnon-McLean Company judgment and order affirmed, with costs; as to city judgment and order reversed and new trial granted, with costs to appellant to abide event. Settle order on notice  