#### Edmund Spillane, Respondent, *v.*The Eastmans Company of New York, Appellant.

(Supreme Court, Appellate Term,

December, 1900.)

Negligence — When persons are fellow servants.

A day laborer and a carpenter, employed and paid by the same master and working under the same foreman in the same building with the immediate common object of erecting it, are fellow servants; and, therefore, where the laborer, while cleaning an upper room, throws a shutter out which falls and injures the carpenter at work below, the latter can recover no damages of the common master, as the negligence complained of is that of a fellow servant.

Spillane v. Eastmans Co., 32 Misc. Rep. 235, reversed.

Appeal by the defendant from a judgment of the General Term of the City Court of the City of New York, affirming a judgment of the Trial Term of that court, in favor of the plaintiff, after trial had before the court and a jury.

The nature of the action and the material facts are stated in the opinion.

Nadal, Smyth, Carr ere *&*Trafford (L. Sidney Carrere and George O. ¡Redington, of counsel), for appellant.

Joseph I. Berry, for respondent.

Giegerich, J.

The plaintiff, while at work for the defendant, as a carpenter, employed by the day, on the ground floor of its building, on March 16, 1896, was injured by the fall of a shutter, which a laborer named John Leonard, in the defendant’s employ, had. thrown- from a window above.

The defendant was, at the time of the accident, a domestic corporation, carrying on the business of a wholesale butcher, and conducting á slaughter-house at Fifty-ninth street and Twelfth avenue in the City of New York. At the time of the injury in question it was engaged in putting up, in the space formerly used as an alley for the driving in of cattle, an addition to the building with a door for the admission of cattle. TJpon such work the defendant employed in all about twenty men, including a superintendent, *464two or three foremen, and bricklayers, carpenters and laborers under them. The front of such addition was open on the ground floor; above that carpenters had finished laying the flooring, and on the exterior scaffolding was erected for the purposes of the work. The plaintiff assisted in the building of the scaffolding the floor of which was above six feet from the ground. The ceiling was about-eleven feet from the ground, thus leaving an open space of about five feet between the flooring of the scaffold and the ceiling of the ground floor in which the plaintiff was at work, sheathing up the front of the building (a narrow space of about twelve feet), by direction of his foreman, one Tracy. "While the plaintiff was so occupied, Leonard, a day laborer employed by the defendant to do miscellaneous work in the building of this addition, under orders of Tracy, who was also his foreman, was cleaning up the room above after the carpenters had finished, and while so doing threw out a shutter, or a part of one, which he found among the rubbish. The shutter, in its descent, struck the scaffolding and went through the open space referred to, hitting the plaintiff and causing the injury complained of.

At the close of the entire case the defendant moved for a disr missal of the complaint upon the ground, among others, *“*That it was clearly shown that -the accident happened, if at all, through the negligence of one Leonard, a fellow servant of plaintiff ”, which motion was denied and the defendant took an exception.

The trial justice in his main charge, adverting to this subject, said: *“*I will withdraw from your consideration 'the question as to whether this injury was caused by 'the negligence of a coservant, and I charge you as a matter of law, directly, that the evidence does not show that the witness Leonard was a coservant with the plaintiff in that work, which he was employed to perform at the place where the accident occurred.” The defendant’s counsel having excepted to such instructions,, the trial justice stated that under the evidence the plaintiff and Leonard were not coservants, whereupon another exception was noted in behalf of the defendant. "We think the trial justice erred in holding, as he did, that the plaintiff and Leonard were not fellow servants. When the accident occurred both were employed and paid by the same common master, for whom they worked in the same building under the same foreman in the same common employment with an immediate common object, the erection of the addition to the bidding in question. *465Under these circumstances the plaintiff and Leonard were fellow servants, although their special lines of work were different (Butler v. Townsend, 126 N. Y. 105, 111; Armour v. Hahn, 111 U. S. 313; Quebec Steamship Company v. Merchant, 133 id. 375; Byrnes v. Brooklyn Heights R. R. Co., 36 App. Div. 355, 356; 1 S. *&*R. Neg. [5th ed.], §§ 234, 239, 241), and the case falls directly within the well settled rule which exempts the common master for injuries to a servant caused by the negligence of another servant. The case at bar is distinguishable from that of McTaggart v. Eastmans Co., 28 Misc. Rep. 127; affg. 27 id. 184, for the reason that it there appeared that the plaintiff, a hodearrier employed in the same temporary work of repair or new construction undertaken by the defendant, was injured through the carelessness of the driver, of one of the defendant’s wagons used in the defendant’s general business of a butcher, in striking his wagon against a ladder which the plaintiff was descending, thereby causing him to fall to the ground.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and O’Gtobman, J., concur.

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