#### William Heffernan, plaintiff, vs. James Benkard *et al.*defendants.

Any interference, assumption of control, or «directions given by the owner of buildings, being erected for him by contractors under a special agreement giving the latter the control of the work, renders him personally liable for injuries caused to third persons by the negligent conduct of such contractors, in work done in obedience to such directions.

(Before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 11, 1863;

decided December 5, 1863.

Exceptions taken on the trial of the cause, and directed by the court to he heard at the general term in the first instance. ■' This action was brought against the defendants, Benkard and Hutton, to recover damages sustained by the plaintiff, Heffernan, by injuries to himself, his wife and property, by the fall of a wall of a building, when in process of construction upon the premises'of.the defendants. The complaint alleged that the fall of the wall was by the carelessness and negligence of the defendants, their servants and workmen. The defendants, in their answer, admitted that they were owners of the building, but averred that the premises were, at the time of the accident, in the possession, of four other parties, as contractors for doing the marble, mason, carpenter and iron work, respectively, and that, during the process of such construction, the defendants had no control of the work, and no right to interfere therewith. They also alleged that all usual and proper cafe was taken in the construction of the wall, and that its fall was occasioned by an extraordinary tempest.

The cause‘was tried on the 28th of May, 1863, before Mr. Justice Barbour and a jury.

At the close of the evidence, the defendants’ counsel moved to dismiss the complaint, which was granted.

The court directed the plaintiff’s exceptions to be heard in the first instance at general term.

*C. W. Sandford,*for the plaintiff.

1. The defendants were liable for the injury sustained by *433the plaintiff from the falling of the wall. 1. It was proved that it was oecásioned by the erection of the side walls without the front, by the direct orders of the defendant, Hutton, and the architect xvho was selected and employed by the defendants as their agent. *(Blake*v. Ferris, 1 *Seld.*48, *and cases there cited.)*

II. Although the defendants agreed to have different parts of the work done by different parties, yet by requiring the whole of them to work under the direction of their own agent, selected by themselves, and removable at their pleasure, they so retained the possession and control of the property as to be liable for the manner in which the work and materials of these contracts were brought together. *(Mayor*v. Bailey, 2 *Denio,*434, 444. *Matthews*v. *West London Water Works,*3 *Camp.*403. *Randleson*v. *Murray,*8 *Ad. & El.*109.)

III. The court erred in nonsuiting the plaintiff. The point upon which the nonsuit was granted, was a question of fact for the jury.

IY. The only real issue in the cause was whether the defendants retained and exercised a control over the building during the progress of the work, and whether in consequence thereof the plaintiff was inj ured, which was a question solely for the j ury.

*B. D. Silliman,*for the defendants.

I. It being established by the evidence that the wall, as constructed, was such as the defendants had a right to construct, using the ordinary precautions under like circumstances, usual in reference to adjoining property, and that the fall of the wall occurred in consequence of a storm of unprecedented violence, the plaintiff did not establish any cause of action against the defendants, having failed to show any want of those usual and ordinary precautions in the erection of this wall.

1. In the improvement of real property with lawful and proper structures, the owner, or person standing in his place, is bound to use ordinary care and diligence only, in reference to the adjoining lands, the structures thereon, and occupants *434thereof. The character of the structure and the precautionary measures for the preservation thereof,'usually adopted under like circumstances, are the only tests as to his liability for accidents. *(Radcliff’s Executors*v. *the Mayor &c. of Brooklyn,*4 *Comst.*195. *Partridge*v. *Gilbert,*15 *N. Y. Rep.*601. *Lasala*v. *Holbrook, 4 Paige,*169. *Brand*v. *The Troy and Schenectady Railroad Company, 8 Barb.*369.)

2. Negligence will not be inferred merely from the occurrence of the accident. *(Terry*v. *The N. Y. Central Railroad Company,*22 *Barb.*574. *Brand*v. *The Troy and Schenectady Railroad Company, 8 id.*369.)

■ II. The wall being in itself a proper structure, protected by proper bracing against all changes of weather, no directions by the architect and defendant, Hutton, could render the defendants liable for the consequences of negligence (if any) in the contractors properly to support and sustain the wall.

1. There can be no pretense that the supposed direction changed the relations between the defendants and contractors. Such directions were not a *new and distinct employment of the contractor;*nor did they create any *new or distinct responsibility,*nor *vary*those existing. They were simply directions, or rather an urging to proceed with the walls, as part of the work embraced in the contract, and wholly and entirely under it. They, claimed and received obedience wholly *in virtue of' and under the provisions of the contract.*

*2.*Even if it could be considered a distinct and independent employment creating new, or varying the existing responsibilities of the parties, the liability of the defendants could only arise from a defective plan, the erection of the walls according to such plan being *without negligence*on the part of the contractor in .erecting or bracing the same. The basis of these actions, however, *is wholly and entirely negligence*on the part of the contractor in the bracing of the wall.

3. If it be held negligence not to have provided for the erec tion and support of the wall, against extraordinary occurrences, and changes of weather, it appears incontrovertibly upon the evidence, that the wall could have been braced *both on the*
      *435
      *exterior or westerly side, and on the interior or easterly side,*so that such bracing, on *either side,*would have rendered it *perfectly safe, even as against all such changes of weather or occurrences;*and it being evident upon the whole evidence that the wall was not so braced, the contractor, if any one, is the party liable, and not the defendants.

By the Court, Bosworth, Ch. J.

I think it is free from reasonable doubt, that the wall, in the condition it was when it fell, was unsafe ; and that it was negligence to leave it in that condition.

The mason’s foreman, Mulshine, testified that the defendants’ architect (whose directions it may have been his duty to follow,) and one of the defendants, Hutton, directed him to carry up the west wall, so as to be in a condition to secure the roof, and that he did so, because these directions were given. That he informed them it was impracticable to do so, unless the front was also carried up ; and that if a storm should come, it would be blown down.

The mason, Woodruff, testified, that this wall “ was carried up so far above the front wall, ® * by the direction of the owner and his architect,” and that he so carried it up because Mr.Hutton directed it, and on no other ground.

If this interference would make the defendants liable, there should be a new trial. A new trial can not be denied, merely because this evidence was contradicted. The fact that it was contradicted, would make it necessary for the jury to ascertain and declare whether the defendants interfered or not; and whether the wall was built as it was in obedience to their orders.

If the defendant, Hutton, gave the directions testified to, and the wall was carried up as it was in obedience to his directions, and if this was dangerous, and was negligence, I think the defendants are liable. ' If he interfered, and controlled the action of the mason, it was his duty to see that such precautions were taken for the security of the wall, as reasonable prudence would require. If owners of buildings being erected for *436them by third persons, under a contract for the pupose, wish to be exempt from liability by reason of the negligent conduct of the latter, they must not assume to control or direct the contractors how they shall go on with the work, but leave them to that freedom from control for which the contract provides.

In *Gilbert*v. *Beach,*(16 *N. Y. Rep.*608,) the court said: *“*If it be assumed that the spout was placed in the condition in which it was found at the time of the coming on of the storm,, by the direction of the defendant, there could be no question in relation to his liability. The contrary clearly could not be assumed, for the witness, Young, testified that he ordered him to do it, and he did it.” *(See S. C.*4 *Duer,*423.)

The facts appearing on the second trial of that action, are stated in 5 *Bosw.*445. The carpenters were to construct a gutter *to*receive the water falling on the roof, and a leader running down to the basement, where it was to be connected with a main pipe leading to the sewer. The leader was left, of a Saturday night, unfinished, reaching to within twelve or fifteen feet of the ground. There was a heavy rain at night, and the plaintiff’s cellar was flooded. There was evidence on the one hand, tending to show that the defendant was himself to furnish the main water pipe in the basement; and on the other, that one McKenzie, .the plumber, had contracted to furnish and introduce it, and that he had improperly delayed doing so. *(Id.*447.) The judge ordered the jury to find for the defendants, which they accordingly did.

. The decision of the Court of Appeals, reversing the judgment of this court, was placed on the special ground stated in the opinion of Mr. Justice Clerks. (5 *Bosw.*455, 456.) I understand the point decided is, that if an owner modifies in any respect his contract with those contracting to erect a building, so that in doing any particular act, they are obeying 'the directions of the owner, if that act is dangerous and negligent, and damage ensues, the owner is liable. In such a case it is- his duty to see that what is done under his special orders, *437is not negligently done ; and that if it is negligently done, and third persons are damaged in consequence thereof,"the owner is liable.

I think, therefore, that the propositions decided in *Gilbert*v. *Beach,*applied to this case, required the submission to the jury of the question whether the wall was carried up as it was in ■ consequence of, and in obedience to orders given by the defendant, and if the jury shall find that it was, and that this was a negligent act, and that in consequence thereof the plaintiff was injured, then the defendants are liable.

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