
    Mary Schmidt, Adm’rx of Frederick J. Smith, App’lt, v. Norma Keehn, Resp’t.
    
      (Supreme Court,General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    Negligence — Husband and wife — Agency.
    Plaintiff’s intestate was killed in an elevator used in the erection of a building upon defendant’s land. It appeared that defendant executed mortgages to raise money to aid .in its construction; that she knew of its erection, and that her husband had charge of the building, and his declarations that he was overseeing it for her were shown. The complaint was dismissed as to this defendant at the close of plaintiff’s evidence, and a judgment recovered against the husband. Held, that the case as against respondent should have been submitted to the jury; that from the circumstances it might reasonably be assumed that the husband was acting as the servant or agent of defendant, for whose negligence she was liable; and that their omission to be sworn is a circumstance from which inferences against them may be drawn.
    Appeal by the plaintiff from a judgment entered upon the dismissal of the complaint in Monroe county as against the defendant, Horma Keehn.
    
      J. & Q. Yan Yoorhis, for app’lt; C. M. Allen, for resp’t.
   Corlett, J.

In December, 1886, the defendant was the owner of real estate in the city of Bochester upon which a building was being erected. Her husband had charge of its construction. On the 8th of that month the plaintiff’s intestate was a laborer upon the building being erected and was killed in an elevator used about the building. The plaintiff brought an action to recover damages for negligence against Edward J. Keehn and the defendant, the wife. At the close of the evidence the complaint was dismissed against the wife, but a recovery was had against the husband. Judgment was entered on the dismissal, and the plaintiff appealed.

The substance of the evidence on the trial as to the defendant was that she owned the building; that she executed mortgages on which she raised money to aid in its construction; that she knew it was being built; the declarations of her husband that he was overseeing its construction for her; the fact that he had. charge of the building during its erection. At the close of the plaintiff’s evidence the defendant moved for a nonsuit, which was granted. Neither of the defendants was sworn as a witness on the trial. Except as above stated, there was no evidence showing in what capacity the husband acted. Whether he was a contractor on his own account or whether he was agent for the defendant, or acted for a third party, the case is silent.

The sole question on this appeal is whether, as against the respondent, the case should have been submitted to the jury. It may be assumed that the evidencb tended to show that the elevator was imperfect and the husband negligent; also that the deceased was free from negligence, because the plaintiff recovered against the husband. If he was the defendant’s servant or agent, and was guilty of negligerice in his employment, she would be liable. In other words, she is chargeable the same as any other person for the negligence of her servants and agents. The fact of her being a married woman is no answer to an action for negligence in making improvements upon her separate property; nor is it important whether her hnsband or a third person acts for her. Her personal knowledge of the defect producing the injury is .not important. Armstrong v. Jones, 10 W. Dig., 144.

In Cutter v. Morris, 116 N. Y., 310 ; 26 N. Y. State Rep., 508, it was held that where services are for the benefit of the separate estate of a married woman, with her knowledge, the presumptions are that they are rendered at her request. It would seem to follow that the claim that the building was constructed for a third perspn’s benefit, or on his responsibility, would require proof. All the cases are to the same effect. Miller v. Hunt, 3 T. & C., 762; Farmilo v. Stiles, 52 Hun, 450 ; 24 N. Y. State Rep., 377; Husted v. Mathes, 77 N. Y., 390.

It is reasonable to assume that where buildings are being constructed on a person’s land and the' owner raises the money for those purposes, that the person having charge and oversight is acting as the servant or agent of the owner. He may be a con- . tractor; he may sustain no relations to the owner except to complete the job and deliver it when finished. But in the absence of proof it is difficult to see why improvements upon the owner’s land and for his benefit should not be assumed to be in pursuance of the owner’s directions. No legal obligation rested upon the ■defendant to be sworn as a witness for herself, or to call her husband, but an omission to do either is a circumstance entitled to some weight where the evidence is of such a character as to allow inferences either way.

In Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 607; 2 N. Y. State Rep., 249, it was held that the omission of a railroad company to call its employees was a circumstance from which inference could be drawn against the company. To the same effect are Bleecker v. Johnston, 69 N. Y., 309 ; The Fred M. Laurence, U. S. D. C., 15 Fed. Rep., 635; People v. Hovey, 92 N. Y., 554.

The husband and wife were in a position to know what the facts were. Their omission to be sworn is a circumstance from which inferences against them may be drawn.

The general rule is, that where there is any evidence, direct or inferential, the case must be submitted to the jury. Smith v. Coe, 55 N. Y., 678.

The judgment should be reversed and a new trial granted.

Dwight, P. J., and Macomber, J., concur.

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