#### Albert Hauser et al., Respondents, *v.*The Metropolitan Street Railway Co., Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

Negligence — Principal excused by letting to an independent con- - tractor.

Where a street railroad company, after obtaining a permit to open a public street in order to conduct improvements, lets the whole work to independent contractors, the company cannot be held liable by one whose horse was injured by falling through the earth between the-pavement and a bridge placed over the opening in the street, as the negligence, if any, is that of the contractors or their workmen.

Appeal by the defendant from a judgment of the Municipal Court, first district, Hew York city, in favor of the plaintiffs.

Henry A. Robinson, for appellant.

George H. Bruce, for respondents.

MacLean, J.

This action was brought to recover for- injuries done to a horse by falling through the earth between the pavement and a bridge placed over an opening in West Broadway, a public street in the city of Hew York, opened under a permit from the department of highways for railway improvements- for the defendant company, for which a contractor did the work. For that injury, action does not lie against the- defendant company, but only against the workman, whose personal act or omission caused the damage, and against the contractor, who selected and controlled him. As was observed by Littledale, J., in Laugher v. Pointer, 5 Barn. & Cres. 547, the workman was not the servant of the contractor, *and*of - the contractor’s employer, for the law does not recognize a several liability in two principals who are unconnected. It is the “ rule in ascertaining who is liable for the acts of a wrongdoer, that you must look to the wrongdoer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back, and make the employer of that person liable.” Willes, J., in Murray v. Currie, 6 L. R. C. P. 24, 27. This is the doctrine stated in Blake v. Ferris, 5 N. Y. 48, which has been criticised for the application,- but' not for *539the doctrine. The doctrine is probably older than the phrase *respondeat*superior, used as the expression of a legal principle, or the maxim *qui facit per alium facit per*se, said in high places to have, been *“*handed down from the Roman Code,” but' which may not easily be found in the Code, of Justinian, who, however, elsewhere regarding the action allowed against a person carrying on one of. certain trades,' for happenings upon his premises, but not through his personal fault, does say: “ Although the action be not established against him *ex maleficio*or *ex*contractu, yet as he is in a way guilty of a fault, because he employed the services of bad people, he seems to be liable *quasi ex maleficio;*the action allowed in these cases is an action upon the fact and it lies in favor of but not against the heir.”

The judgment should be reversed, with costs.

Leventritt, J., taking no part.

Freedman, P. J. (concurring.)

The defendant company had procured a permit from the proper public authorities to open West Broadway for the purpose of making certain railway improvements, and consequently no part of said work necessarily done under such permission constituted a public nuisance, and" the defendant can be held only for negligence. Upon that point the evidence is clear that the defendant let the work to independent contractors, that it did not interfere with them in the manner of the- execution of the work, and that the injury to plaintiffs’ horse was occasioned by the manner in which the contractors managed the details of the work. If there Was negligence in this, it was the negligence of the contractors, for which defendant is not liable, responsible. Blake v. Ferris, 5 *N.*Y. 48 Berg v. Parsons, 156 id. 109.

Judgment must, therefore, be reversed, new trial ordered, with costs to appellant to abide the event.

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