
    J. De Witt Butts, Resp’t, v. The J. C. Mackay Co , App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. Negligence—Contractors.
    The rule that a contractor who has sublet a portion of the work to a responsible and competent party is not liable for damages caused by the negligence of the sub-contractor has no application to a case where an agent of the contractor having charge of the work directs the agent of the owner of the building to let water in the tank furnished by the subcontractor without investigating to ascertain if it would hold water.
    3. Same—Assignability of claims for damages.
    Claims of tenants of the owner for damages to their goods caused by the water leaking from the tank are assignable.
    
      Appeal from a judgment entered in favor of the plaintiff upon the report of a referee.
    A. N. Wilson, for app’lt; William N. Cogswell, for resp’t.
   Lewis, J.

The defendant is a domestic corporation engaged in supplying buildings with a sprinkling system for extinguishing fires, known as the J. G. Mackay Go. automatic fire extinguisher. Plaintiff, being the owner of a block of buildings in the city of Rochester, entered into a contract with the defendant by the terms of which the defendant agreed to equip said block of buildings with its automatic sprinkling system. A part of the equipment consisted of a tank of sufficient capacity to hold the necessary water for the operation of the plant, which the defendant contracted to furnish and 'place upon trestle work over the building and connect therewith water pipes for the purpose of filling the tank with water, for all of which the plaintiff agreed to pay the defendant $1,850. The defendant sublet to the firm of J. F. Montgomery & Son, of the city of Rochester, the furnishing of the tank. Montgomery & Son constructed the tank and placed it in position over the building, and upon water being let into it it was found to leak, and Montgomery & Son repaired it. One F. L. Bellows, the defendant’s secretary, had general charge of the work and of testing it. After -the tank was repaired and the pipes were in place, plaintiff’s servant, by direction of Bellows, let water into it for the purpose of testing the plant. The tank still leaked and the water ran out of it down into the building and damaged a quantity of goods and materials therein belonging to the plaintiff’s tenants. They severally assigned their ■claims for damages to the plaintiff, and he brought this action, which was duly referred, and a judgment was entered upon the report of the referee in favor of the plaintiff for the damages to the goods, and from said judgment this appeal was taken.

The tank was placed upon a trestle over a center brick fire wall, the top of which extended above the roof of the building. The water in leaking from the tank ran down this fire wall behind some tin flashing which was originally inserted into the brick wall, but which had settled and drawn away from the brick, and the water thus made its way into the building and caused the damage. The roof, notwithstanding the defect mentioned, was sufficient for the ordinary purposes of a roof.

The appellant contends that having sub-let the making of the tank to Montgomery & Son, who were responsible and competent builders, it is not liable to third parties for damages caused by the negligence of their sub-contractors. The tank in question was .a part of the equipment which the defendant had contracted to furnish. The defect which caused the damages was in the very .article which the defendant had contracted to furnish; and it may well be doubted if the rule suggested by the appellant has any •application in such a case. But without deciding that question, it has, we think, no application to this case for, as we have seen, the defendant’s agent had general supervision of the work, and personally directed Angel, the plaintiff’s servant, to let the water into the tank without investigating to ascertain if it would hold water. Angel had general charge of the building for the plaintiff, but he does not appear to have had any special information in regard to the work or the condition of the tank after the repairs were made. He very properly assumed that Bellows knew whether it was safe to fill the tank with water, and no negligence can be imputable to the plaintiff because of the act of Angel.

Whether the defendant had formally, as between itself and Montgomery & Son, accepted the tank as completed, is not material. Bellows was there to test the apparatus, and in order to do so it was necessary that the tank should be filled, and in •consequence of its defective condition the damage ensued.

The claims of the tenants for damages to their goods were assignable. Section 1912, Code of Civil Procedure.

The referee found that their claims had been properly assigned to the plaintiff, and no exception was taken to this finding.

We see no reason for a reversal of the judgment, and it .should be affirmed.

Judgment appealed from affirmed.

Dwight, P. J., Haight and Bradley, JJ., concur.  