#### Harry Stubley, Appellant, Respondent, *v.*Allison Realty Company, Appellant, Impleaded with The City of New York, Respondent, and Paul Schwandtner and Edward Pole, Defendants.

First Department,

February 7, 1908.

Municipal corporations — public and corporate duties — building department— negligent approval of plans —nuisance —collapse of building . —liability of city — liability of owner—employment of independent contractor.

The building department of the city of New York performs a public service in which the city has no private or corporate interest and its negligence in approving defective building plans does not render the city liable.

A municipal corporation is not liable to a person injured by the collapse of a . building for failure to pass or enforce an ordinance relating to the construction of buildings which would have prevented its collapse.

The duty of a municipal corporation to keep its streets in. a reasonably safe condition for public travel" does not render it liable to a person injured by the collapse of a defectively constructed building where the person injured was in the building and not in the street at the time of its fall.

The owner of a building in process of construction is not liable to a person injured by its collapse where the work was done by an independent contractor over whom it exercised no control or superintendence, in the absence of proof that the owner was negligent in selecting the contractor or in adopting its plans and specifications. •

Appeal by the defendant, the Allison Realty Company, from a judgment of the Supreme Court in part in favor of the plaintiff and against said company, entered in the office of the cleric of the county of New York on the 22d day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office' on the 17th day of April, 1907, denying the said defendant’s motion for a new trial made upon the minutes.

Also, an appeal by the plaintiff, Harry Stubley, from that part of said judgment in favor of the defendant, The City of New York,, entered upon the dismissal of the complaint by direction of the court as to said defendant city.- ' ■

*William N. Oohen,*for the plaintiff.

*163*William J.*Moran, for the appellant Allison Realty Company.

*Theodore Qonnoly,*for the respondent The City of New York.

McLaughlin, J.:

The Allison Realty Company appeals from a judgment in favor of the plaintiff, and the plaintiff appeals from a judgment dismissing the complaint against the city of New York.

The complaint alleges, in substance, that the realty company at the time stated was the owner of a building which was being constructed on the north side, of Forty-sixth street, about 205 feet east of Sixth avenue, and was engaged in supervising such construction ; that it had let a contract for the construction of the metal framework of the building to the defendants Pole • and Schwandtner, who at the time referred to were engaged in carrying out the same; that on the 2d of March, 1904, the plaintiff, an employee of a third party, to whom the realty company had let a contract to put in the steam fittings, was at work in the building, and, while thus engaged, the building suddenly, and without warning to him, collapsed, and he sustained very serious injuries; that the city of New York was authorized, and it was its duty, to abate within its limits all nuisances dangerous to the public ;• that it had negligently and carelessly permitted the erection of said building, which was on the day specified, and had been for some time prior thereto, dangerous and a public nuisance, of which it had knowledge, nr by the exercise of reasonable care should have known; that the collapse of the building and the injuries to the plaintiff were caused by the negligence and carelessness of the defendants in certain specified particulars relating to the construction of the building, and by the further .act of the city in allowing such nuisance to continue, and by • failing to abate the same after notice of its existence.

It is somewhat difficult to determine' from the allegations of the complaint whether the cause of action attempted to be alleged against the city is for negligence or nuisance, but inasmuch as it was contended upon the oral argument of the appeal by plaintiff’s counsel, and the same contention, is made in the brief presented by him that it is for a nuisance, I shall, in disposing of the question presented, assume that to be the cause of action alleged.

*164At the trial no proof was offered that the plans and specifications of the building as approved by the building-department were defective, or if so, to such an extent that the construction of the building • itself would necessarily result in a nuisance, either public or private. The plans and specifications were not put in evidence, and if they had been and it had appeared therefrom, or from other evidence, that they were defective, the action of the building department or the officers connected therewith in approving the same-would not have rendered the city liable. The building department is not an administrative department of the city. It- is a bureau created by-statute * to perform a public service, in which the'city itself has no private interest and from which it derives no special benefit or advantage in its corporate capacity, and for any neglect, either of omission or commission on the part of the officers connected with such bureau, the city is not' liable. *(Maxmilian*v. Mayor, 62 N. Y. 160; *Fire Ins. Co.*v. *Village of Keeseville,*148 id. 46; *McGuinness*v. *Allison Realty Co.,*46 Misc. Rep. 8; affd., 111 App. Div. 926; *Connors*v. Mayor, 11 Hun, 439.)

In *Connors*v. *Mayor (supra)*the action was brought against the City to recover damages for injuries sustained by the plaintiff’s intestate by the fall -of a building. It appeared that the building had been practically consumed by fire, and to such an extent that the walls became unsafe. One of the walls subsequently fell upon the intestate and so injured her that she died. - The court held that the duty of examining the building and structure after the fire was vested in the department of buildings, and that the officers and agents thereof were not the agents of. the city, for which reason it was not liable.

But it is contended that the building, by reason of '.-the defective materials used and the methods adopted in 'construction-, was a public nuisance, because it was a menace to persons using the public street upon which it abutted.; that this fact was or should have been known to the city, and since it was obligated to keep the streets in -a reasonably safe condition for public travel, it became liable to any person who sustained injuries from the collapse of the building, even though -such person was not at such time *165upon the street. The building at the time of the collapse had ■reached a height of one hundred and twenty feet above the street. It stood entirely upon private property. The entrance to it was five or six feet from the nearest edge ■ of the sidewalk. The street upon which it abutted was between fifty and sixty feet wide, and the sidewalk about fifteen feet. If it be assumed that the condition of .the structure, immediately preceding its collapse, was such that it did in fact-imperil the safety of persons using the- street, I am unable to see upon what principle of law the city can be held liable. It did not fall into the street, and no person therein was injured. The plaintiff was at work in the building when it fell. The city cannot be held liable for a failure to pass an ordinance relating to the construction of buildings which would have prevented the collapse, or, if such had been passed, for a failure to enforce the same. *(Landau*v. *City of New*York, 180 N. Y. 48; *Leonard*v. *City of*Hornellsville, 41 App. Div. 106.)

In *Leonard*v. *City of Hornellsville (supra)*the plaintiff was injured by a rifle bullet which rebounded from the target of a shooting gallery abutting on the street. For sometime previous the shooting gallery and target had heen in the same condition and endangered the safety of persons using the street—was. a public nuisance and was, known to the city. It had the power to abate the nuisance but failed to do so. “Assuming,” says Mr. Justice McLennan, “ that the evidence established, as against the defendant city, that a nuisance to its knowledge existed upon private property adjacent to a public street of such a character as to make it dangerous for persons'to go upon or travel over such street; that the city had power to abate such nuisance;. that it failed to exercise such power, and that by reason of such failure the plaintiff sustained the injury complained of, is the- defendant city liable?” The learned justice, after a consideration of numerous authorities bearing upon the subject, reached the conclusion that the question propounded should be answered in the negative. He said : “ The conclusion is reached that a municipality, authorized by its charter or by general statute to suppress a nuisance wholly upon private property, is not liable to. a person who sustains injury by reason thereof, because of the'fact that such municipality failed to pass an *166ordinance prohibiting the same, or failed to enforce such ordinance if passed, notwithstanding its continuance rendered travel upon a public street of such municipality, dangerous and unsafe.”

In *James’ Admr.*v. *Trustees of Harrodsburg*(85 Ky. 191) the intestate, while traveling upon a public street,, was struck by a stone throwm from adjacent private property where blasting was carried on, to tlie knowledge of the officers of the defendant. It was held that the failure of the corporation to provide the means of abating a’nuisance,’altogether on private property, or the omission of its officers to abate it when the means are furnished, gives no right of action against the corporation to,those who are injured by its neglect of duty.

In *Hubbell*v. *The City of Viroqua*(67 Wis. 343) the plaintiff, while traveling upon a public street, was injured by a bullet fired from a shooting gallery in a tent located on private property.- It was held that a recovery could not be had, the court saying: “ Persons erecting such structures near a public highway, if they erect or maintain them in such manner as to interfere with the safety of persons travelling such highway, may be answerable. for any damage caused by the existence of such structures to persons travelling such highway; but they do not' constitute an insufficiency of the highway itself, within the meaning of the statute, so as to render the town, city or village in which they are situated liable for the damage caused by their existence.”

In *Cain*v. *City of Syracuse*(95 N. Y. 83) it was held that, notwithstanding the city by its charter had power to demolish walls of buildings within its limits which had become dangerous by reason of fire, its failure to exercise such power, by reason of which plaintiff.—■ who was in an adjoining building, and not upon the street — was injured, did not make the city liable.

The city, of course, is obligated to keep its public streets in a reasonably safe condition for public travel. Its obligation, however, in this respect, is to persons using such streets, and not to those engaged in a private enterprise upon private property. > Here the plaintiff, while he may have used the street in going to and from the building, was not in it at the time the building collapsed and lie was injured..

It is a somewhat startling proposition, and to which. I am not-*167ready to assent, in the absence of controlling authority on the subject, that because a building in the course of erection by a private person, entirely upon private property, may fall, and by reason thereof possibly be a menace to persons using the public streets, the municipality thereupon becomes liable to respond in damages for the injuries sustained by persons at work in the building at the time it falls.

My conclusion is that the complaint against the city was properly dismissed, and that the judgment to that effect should be affirmed.

The appeal of the Allison Realty Company presents a somewhat different question. It was the *owner*of the real estate, and had entered info a contract with the defendants Pole and Schwandtner for the construction of the metal framework of the building. It had a right to construct a building upon its own land, and in doing so did not subject itself to liability for damage to others except upon the .theory of negligence, unless such damage was the necessary consequence of or sprang from the construction itself, in which case it might be held liable for a nuisance. *(Bohan*v. *P. J. G. L.*Co., 122 N. Y. 18; *McKeon*v. *See,*51 id. 300.) Having the right to construct the building, it could do so itself or through an independent contractor, and if it chose the latter, it could not be made liable for his negligence, providing it was free from negligence in making the selection.

It is well settled that where an owner of real estate' employs a competent contractor to erect a building thereon, and exercises due care in providing him with suitable plans and speeilications for the construction, and assumes no control or supervision over the work, he is not liable for the negligence of the contractor, either in the selection of the materials or the execution of the work itself. *(Burke*v. *Ireland,*166 N. Y. 305; *Hexamer*v. *Webb,*101 id. 377). If, however, the construction of the building itself were a nuisance, then he could be held liable, irrespective of the contractors’ negligence, and this upon the theory that one who participates in the creation of a nuisance, or in maintaining it, does an unlawful act and if damage be sustained in consequence, then liability attaches. *(Ahern*v. *Steele,*115 N. Y. 203; *Finkelstein*v. *Huner,*77 App. Div. 424; affd., 179. N. Y. 548; *Uggla*v. *Brokaw,*117 App. Div. 586.)

Here, as in the complaint against the city, the plaintiff contends *168that the action is to recover damages for a nuisance and not for negligence. The conclusion, at which 1 have arrived-renders it unnecessary to determine whether the contention is well founded or not,, because' in either case I do not see how the judgment can be sustained.

' At the trial no proof was offered on behalf of the realty company,' and the plaintiff is entitled to have the evidence presented in his behalf considered in the light most favorable to him, and every material fact which such proof tends to establish, or which can legitimately be inferred therefrom, -must he deemed established in his. favol\ Giving to the plaintiff the benefit of this-rul'e, I do not think the proof set out in the record, before.‘u& established a cause of action in his -favor against the -realty company', No proof -was offered that the contractors -were not thoroughly competent-to d'o the ■ work which -they undertook. Neither the plans and .specifications for the building, nor the contract of the realty company with the contractors was introduced in evidence, so that-it is impossible to determine what the plans and specifications, or the terms of:the contract were. It did appear,. however, from plaintiff’s witness Parsons, that in bis opinion the 'building collapsed because “it was. so joined together that it had no lateral support, from the structure itself 1 The effect of this fault in the design was-to make the columns act as long columns.” But his .testimony was not based upon any information which he derived from a study of. the plans, and he.admitted that this was a common method of construction. Plaintiff’s witness French, an inspector in the building department, testified “ I examined the. plans at the start-off of .the building,, that were filed' i-n, the office .* Those plans at that time were on file in the office of the Building Department., I noticed-no particular' defects.; simply what is generally noted in all.buildings in the course of their erection, such as bolting, etc.” Just what the witness meant by the use of the words “ such as bolting, :etc,,”is not apparent, but it -is-clear that he referred, not. to the plans," but to.the work of construction-..... This' witness also- -testified, ;as did another, that the plans and .specifications bad-been approved by the' building department. This constitutes- substantially all- the proof which was offered as'to the plans and specifications, and it rebuts rather than warrants, a conclusion that they were defective.

*169The complaint alleged that the realty companj-, notwithstanding it had let' a contract for the construction of the building, supervised its construction. No proof whatever was offered tending to establish this allegation. The foreman employed by the contractors gave the only evidence bearing on the subject, and this was : “Both Mr. Pole and Mr. Schwandtner were oxi the building at that time off .and on through the week. This is also true of Mr.'Allison.” Who Mr. Allison is does not appear, nor does it appear that he was in any way connected with the Allison ¡Realty Company, or that he ever assumed to direct or superintend the erection of the building. Simply because a person happens to have a name which corresponds in part to the name of a corporation, falls far short of establishing that such person is an officer of the corporation or is authorized to or can bind it by any act of his. No proof was offered that the contractors were incompetent or that the realty company did not' exercise due care in entering into the contract, nor was any proof offered to the effect that the realty company or any one else considered the building unsafe, except that it did appear that a short time before the building collapsed it w.as noticed by the contractors or some of the persons in their employ to be out of plumb, and was immediately drawn back into plumb, but it did not appear that the' realty company ever had knowledge of this fact.

At the close of the trial, therefore, the evidence tended to establish, so far as the realty company was concerned, the following facts: That the plaintiff was injured while at work oh the building by reason of its collapse ; that the building was being constructed by independent contractors who, so far as appears, were competent; that the plans and specifications for the construction of the building had been approved by the building department of the city and no defects appeared therein; that the realty company did not superintend the erection of the building or exercise any control over the contractors, nor did it have any knowledge that prior to its collapse it was in a dangerous condition or liable to fall.

Under such circumstances I do not' think a cause of action was proved against the realty company, and the finding of the jury to the contrary is against the evidence.

If the owner had been' constructing the building itself, or super- " i tending the construction, then it is possible that it would be liable *170under the rule *res ipsa loquitur, (Mullen v. St. John,*57 N. *Y*. 567; *Griffen*v. Manice, 166 id. 188.) But when it appeared that . the building was being constructed by independent contractors over -. whom the owner liad no control, that rulé, as against the owner,did not apply.. *(Cross*v. *Koster,*17 App. Div. 402; *Hexamer*v. *Webb, supra*.).

I am of the opinion, therefore^ that the judgment dismissing the complaint so far as the- city is concerned should be affirmed,, with costs,-and.the judgment against the realty company and the order denying a motion for anew trial should be reversed, with costs to it to abide the event of the action..

Ingraham, La ugiilin and Houghton, Jj., Concurred; Patter- ' son, P. J., concurred in'the opinion so far as iff relates to the city, - and in the result as to Allison Realty Company. •

• On appeal of plaintiff, judgment in' favor of the. city affirmed, • with costs; on appeal of defendant Allison Realty. Company, judgment and order reversed, -new trial ordered;, costs to appellant to abide event. Settle order oh notice. -

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 See Laws of 1901, chap. 466, §§ 96, 405 *et seq.,*as amd.—[Rep.