#### Patrick G. Malony, App’lt, *v.*Edward J. Brady, Resp’t.

*(New York Common Pleas, General Term,*

*Filed June*1, 1891.)

Landlord and tenant—Negligence.

_ A landlord who employs another to make repairs to his premises, occupied by a tenant, is liable to the tenant for injuries caused by the negligence of the person so employed, although the latter is an independent contractor, and may recover over against the contractor.

Appeal from judgment of the district court of the city of New York for the ninth judicial district.

*A.*McDonald, for app’lt; *Johnston &*Johnston, for resp't.

*804Bookstaver, J.

Plaintiff is the owner of the, building No. 265 Washington street, which in December, 1890, was occupied by the Eppens, Smith & Wymans Co. This building needed a new roof, and with the consent of the tenants plaintiff undertook to have one put on, although the case does not show that he was under any obligation to keep the premises in repair. He made a contract with the defendant to do this work for the sum of $140,, and the latter guaranteed plaintiff against all loss or damage from his acts while the work was being done. The old roof was of tin, and the new one was to be of the same material. The tenants at. that time_ had a quantity of teas, coffees and perishable goods in. the building. When the defendant commenced the job, he put but one roofer and a helper at work. The plaintiff frequently complained of this, but the defendant said he could fin'd only one: roofer just then, but that it would be all right, and he would guarantee no damage should arise. After he had been at work some days, the weather became threatening, and the plaintiff again saw the defendant and warned him of the danger, and he said the plaintiff might be at rest *“*he would guarantee there would not be a dollar’s worth of damage if a storm came.” Plaintiff then asked him to send his men around to put the roof in a condition to resist the storm, which he promised to do. A storm then came on. At that time but one-half of the roof was covered with new tin, and the old was drawn over it in such a manner that the rain penetrated into the building and, it is claimed, damaged some of its contents, for which the plaintiff paid the tenant the sum of $178.80, to recover which this action was brought Upon the trial the complaint was dismissed. This must have been upon the theory that the plaintiff was not in any way liable for any degree of negligence in putting on the roof.

As a general rule, where a person is employed to perform certain work in the nature of repairs or improvements to a building by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the accomplishment of which is left to his discretion with no restriction as to its exercise, such person does not occupy the relation of a servant under the control of a master, but is an independent contractor, and the owner is not liable for his acts or the acts of his workmen who are negligent and the cause of injury to another. It is essential in order to establish the liability against the principal for the negligence of others, that the relation of master and servant should exist *Hexamer*v. *Webb,*101 N. Y., 377; 1 N. Y. State Rep., 46; *King*v. *N. Y. C. & H. R. R. R. Co.,*66 N. Y, 181; *Devlin*v. *Smith,*89 id., 470 *Morton*v *Thurber et al,*85 id., 550.

But a landlord making repairs to his premises occupied by a tenant, seems to be an exception to this rule. In *Sulzbacher*v. *Dickie,*6 Daly, 469, it was held that a landlord, under circumstances very similar to those which were proved in this case, was liable, and we feel constrained to follow that decision.

The judgment must therefore be reversed and a new trial ordered. But as the appellant did not call the attention of this court to the foregoing decision, and presumably did not call the *805attention of the court below to it, we think under the circumstances no costs of this appeal should be allowed to either party.

Upon a new trial, the amount paid by the landlord is not to be taken as the measure of damages, but the defendant should be at liberty to show if he can that he was guilty of no negligence in the matter; and in no event should the plaintiff recover more than the actual damage sustained by the tenant.

Bischoff, J., concurs.