
    Annie Steiker, Respondent, v. Ernst Plath, Appellant.
    
      Negligence — a shutter falling into a yard—caused by the act of a third person.
    
    The owner of a building is not liable for an injury caused by the fall of an iron shutter which, only -a few months before the happening of the accident, had been put up by the requirement of the city building department and the construction of which had been approved by it, and which was shown by the testimony of four witnesses to have been pried off of its hinges by a woman in trying to close it.
    Appeal by the defendant, Ernst Plath/from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      H. M. Geseheidt, for the appellant..
    
      Charles G. F. Wahle, for the respondent.
   Patterson, J.:

The plaintiff in this cause claims to have been injured by the falling of a shutter from a rear window of the second story of the house mentioned, in the complaint, and charges that "the shut.ter fell in consequence .of. the insecure manner in which it was attached to the wall of the house, thus imputing negligence to the defendant, who was owner and landlord, in the construction and maintenance of this appurtenance to his property. The plaintiff was a tenant of the basement floor of the house, in which premises she carried on the business of manufacturing hats. She became a tenant in July, 1894; the shutter fell on the 22d of August, 1894. It was proven that the shutters on the rear of the house, including the one that fell, were put up in the spring of 1894, in April or May; that they were metal shutters, and were put on by the landlord in consequence of a requirement to that effect made by the building department of the city of Eew York. It was also shown that after they were up they were examined by the building department and found to be proper. There is an irreconcilable conflict of testimony as to the condition of the shutter when it fell, it being testified to by the witnesses for the plaintiff that not only did the metal shutter itself fall, but that there was attached to it, when it-fell, an iron hook, to which it had been secured in the wall, and that that hook was dislodged from ' the wall with the shutter. The inference sought to be drawn from that circumstance is that the original construction was bad. It was also sought to be shown that other shutters had fallen from rear windows of the premises, and that the defendant was advised and knew of their insecure condition, and had assured the plaintiff that the shutters were secure when she called his attention to their condition before the alleged accident happened. One of the most marked conflicts in the testimony is upon the question of the condition of the shutters prior to the 22d day of August, 1894. The conflict was so sharp that it is evident that upon that, as well, as upon other material questions of fact, there can he no mere • mistakes of witnesses, but there must be on one side or the other deliberate and willful perjury. At the close of the plaintiff’s case there was undoubtedly sufficient evidence to authorize the submission of the cause to the jury; but when the proof was all in the defendant moved to dismiss the complaint on the ground that it was shown by uncontradicted evidence that the cause of the falling of the "shutter was something which could not be attributed to the defendant as negligence' either in the construction or maintenance of the shutter. The learned judge' declined to dismiss the complaint on that ground,..and we think that in this regard he was in error. It stood uncontradicted that, only- a few months before the occurrence of the falling of the shutter, it had been put up on the requirement of the building department, and that its construction was approved by that department; and, it was also shown' by the uncontradicted testimony of four witnesses that the cause of the falling of the shutter.was the act of a person in the employ of the.tenant-of the second floor in endeavoring tti' close the shutter in an -improper way.' Three of the witnesses who testified as to that feature of the case were' entirely disinterested. Mr. Regensburg,'a-real, estate dealer, was in the yard of the premises at the time the shutter fell; he testifies that he was. looking up at the rear of the building and noticed a young woman on the second floor trying to close the shutter'with a stick. She pried it off the hinges and it fell down. The witness Corn, who was also there'at the time, said : “I looked up around the buildings and I noticed in the second story -a woman, or' a young girl, was working there at the big heavy iron shutters, there. ■ And the first-thing you knew * * •* the-shutter fell-right ..flat down.” - . Miller,. a witness, says, that -the girl was standing at the second story working with the shutter which she could not reach and she took a big stick and the shutter jumped out of the hook. The witness Feisot says.that he saw the girl working at'the shutter; that there-was a stick placed between- the shutters in order to keep them open; -that she took hold of the iron shutter by the ring and without taking- out the stick, and, as she started to pull the shutter, it was lifted from the hinge and fell. . These four witnesses concur in -ascribing t-he fall of-the shutter to the act of the girl who was working at it at the second story. There are differences of detail in the accounts of these witnesses- as to the exact thing the girl was doing; differences. which indicate the truthfulness of their story, for there is evidently no prepared accord of views and use of identical words as to the minute: details of. the situation. The.testi- ' .mony of these witnesses is sufficient to show conclusively that by . the interference of a third party, over whom this defendant had no control, that shutter was interfered with in such a way. as to cause it to fall, -that being the proximate cause of the occurrence'and not the negligence of. the defendant in constructing- or maintaining, a shutter, the construction of which but a few months before had been approved by the building department of the city of New York.

The cause of the accident Was thus proven beyond contradiction, and the court below should have granted the motion made at the close of all the proofs to dismiss the complaint.

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

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

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