Schlegel v. Quinton — 243 A.D. 799

Majority

p. 799

Jacob Schlegel, an Infant under the Age of Fourteen Years, by Sarah Schlegel, His Guardian ad Litem, Respondent, v. Max Quinton and Another, Individually and as Copartners, Doing Business under the Firm Name and Style of Quinton & Stein, and Another, Defendants, and Max Quinton, Individually and as Sole Surviving Partner for the Purposes of Liquidation of the Partnership of Quinton & Stein, Appellant.

Action to recover damages sustained by an infant who, while on a city sidewalk, was struck by a metal chip from a pipe being chiseled by an employee of a plumber doing work on the premises owned and being built by defendant partners. It is claimed that the operation of severing the pipe on the sidewalk was at the direction of one of the partners. Judgment affirmed, with costs. No opinion. Young, Carswell, Scudder and Johnston, JJ., concur; Lazansky, P. J., dissents and votes for reversal and a new trial on the ground that there was no proof that at the time of the accident the employee of the subcontractor was working on the sidewalk at the instance of the owners, contractors. The facts do not justify the inference from the alleged direction given

p. 800

a day or two before the accident by one of the owners, contractors, that it was intended that such direction was a continuing direction.