
    MASAL v. TARRNOWSKI et al.
    (128 App. Div. 159.)
    (Supreme Court, Appellate Division, Second Department.
    October 16, 1908.)
    Negligence—Dangerous Premises—Presumptions.
    In the absence of evidence, it will be presumed that an owner of a lot erected a building thereon and a temporary fence along the inner line of the sidewalk, rendering him liable for Injuries to a pedestrian by the fence falling on him because it was insecurely fastened.
    Appeal from Trial Term, Queens County.
    Action by John Masai against Ignace Tarrnowski and another. From a judgment for defendants, entered on a dismissal of the complaint at the close of the trial, plaintiff appeals. Reversed as to defendant Joseph Tomanek, and affirmed as to defendant Ignace Tarrnowski.
    The evidence showed that a building was in the course of erection on the lot of the defendant Tomanek; that in front of the building, and along the inner line of the sidewalk, a close temporary board fence or shield to the front of the building was erected; that it was 14 feet high; that as the plaintiff was passing on the sidewalk it fell over on him; that it was held upright by cleats fastened to the said fence and the building; that they were weak ,and insufficient, and gave way from the wind that was blowing.
    
      Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.
    I. Henry Harris, for appellant.
    John M. Zurn, for respondents.
   GAYNOR, J.

There seems to be no reason for the dismissal in the case of the defendant Tomanek, the owner of the property. In the absence of any evidence on that head, the presumption was that he was doing the work on his property, and erected the fence or shield in front of it, which, if so unsafely fastened as to be likely to fall into the street, was a nuisance. Vincett v. Cook, 4 Hun, 318. The other defendant was in no way connected with the property or the work -upon it.

The judgment should be reversed in respect of the defendant Tomanek, and affirmed as to the other defendant.

Judgment reversed, and new trial granted, costs to abide the event, as to the defendant Tomanek. Judgment affirmed, as to the defendant Tarrnowski, with costs. Order appealed from affirmed. All concur.  