
    William Brennan, Respondent, v. George L. Walker Company and John McDermott, Appellants.
    (Supreme Court, Appellate Term, First Department,
    December, 1915.)
    Contracts — building — alleged negligence of general contractor — as joint tort feasor.
    Mere knowledge on the part of a building contractor that the work is being done in a negligent manner by his subcontractor is not sufficient to charge the general contractor therewith unless he actually participates in and exercises control and direction over the manner in which the work is done; but if the work to the knowledge of the general contractor is done in violation of law he is liable as a joint tort feasor with the subcontractor.
    Appeal from a judgment in favor of plaintiff and against the defendant George L. Walker Company for $633.28 damages and costs, entered in the City Court of the city of New York, borough of Manhattan.
    Floyd K. Diefendorf (Floyd K. Diefendorf and James F. Donnelly, of counsel), for appellants.
    Armstrong & Keith (John S. Keith, of counsel), for respondent.
   Guy, J.

Defendants appeal from a judgment in favor of plaintiff in an action for personal injuries. Plaintiff was employed as a plasterer by one McDermott, a subcontractor, in the construction of an addition to a church building, for which work the defendant Walker Company was the general contractor, subcontractor McDermott’s work having only to do with the plastering. While so éngaged at work a ceiling, which had been constructed by another subcontractor, and upon which plaintiff was engaged in doing plastering work, fell, injuring plaintiff.

Evidence was introduced by the plaintiff tending to show that the ceiling constructed by the other subcontractor had been constructed in violation of the rules of the bureau of buildings, and that the defendant Walker Company, through its representatives, not only had knowledge of the manner in which said work was unlawfully done, but actually participated in exercising control and direction over the manner in which it was done. Evidence in contradiction thereof was presented by the defendant company. On all the evidence there were three issues for the jury: -First, whether the work of constructing the ceiling was done in an unlawful manner; second, whether the defendant Walker Company participated in and exercised control and direction over the manner in which such work of construction was done; third, whether, if the work was done in an unlawful manner, the defendant Walker Company had knowledge of the fact that the work was being done in violation of law and permitted said work to proceed in an unlawful manner.

It is well established by the authorities that ordinarily a general contractor who sublets part of the work of construction on a building, relinquishing the right of control and direction over the work so sublet, and exercising only such general superintendence as is necessary to see that the subcontractor duly performs his contract, is not liable for any merely negligent acts of the subcontractor, and that mere knowledge that the work is being done in a negligent manner by the sub-contractor is not sufficient to charge the general contractor therewith, unless he actually participates in and exercises control and direction over the manner in which the work is done. Parson v. Johnson, 208 N. Y. 337. If, however, the work in done not merely in a negligent manner, but in violation of law, and the general contractor has knowledge of the violation of the law during the progress of the work, makes no objection, and does nothing to endeavor to cause the work to be performed in a lawful manner, he is liable, as a joint tort feasor, with the sub-contractor, for injuries resulting from such violation of law. “He is not at liberty to stand by, with knowledge of the breach of law, and escape liability merely because the actual work is being done by another, whether such other be an independent contractor or an agent for whose doings he would, in general, be responsible.” Pitcher v. Lennon, 12 App. Div., 356; Burke v. Ireland, 26 id. 487; Haenschen v. Allison Realty Co. and Roebling Con. Co., 124 id. 920; affd., 194 N. Y. 533.

The courts have invariably held that every person violating a statute is a wrongdoer, negligent in the eyes of the law, and that any innocent person injured by such violation, if it be the proximate cause of the injury, may, in a proper case, recover damages from employer and contractor jointly or severally, it not being in the power of an owner or general contractor to escape liability by making a contract with another to commit the wrong for him.

In submitting the case to the jury, the trial judge, under exception by defendant’s counsel, charged the jury as follows: “If you find this defendant knew this work was done in an improper manner, you have a right to hold not only the subcontractor, but also the contractor liable for damages.” This charge was clearly erroneous under the rule laid down in Par san v. Johnson, supra, unless the jury found on all the evidence that the defendant Walker Company had actual or presumptive knowledge that the construction work upon the ceiling was being done in violation of the rules of the bureau of buildings. This fact was not conclusively established by the evidence, but was one of the issues, on conflicting evidence, which it was the duty of the jury to determine. Mere knowledge on the part of the defendant that the work was being done in improper manner was not sufficient to charge the defendant with negligence, though knowledge that it was being done in an unlawful manner would be sufficient to render the defendant liable therefor. The language of the charge in this regard was, therefore, highly prejudicial and might well lead the jury to believe that the mere knowledge that the work was being done negligently would render the defendant liable, even though defendant committed no affirmative act in superintendence and exercised no control or direction over the work, and even though the work was not done in violation of law.

Again, the court was asked, by the defendant, to charge: “ That the defendant George L. Walker Company is not responsible for and cannot be held to respond in damages for any negligent act or omission on the part of the defendant McDermott, his servants, agents or employees,” to which the court replied : “ I decline to charge in that language. I will charge, unless he knew of any negligent act or omission. ’ ’ To this refusal and modification of the request, defendant excepted. This ruling was prejudicial and constitutes reversible error. The judgment must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Page and Philbin, JJ., concur.

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