Stubley v. Allison Realty Co.

The Allison Realty Company appeals from a judgment in favor of the plaintiff, and the plaintiff appeals from a judgment dismissing the complaint against the city of New York. The complaint alleges, in substance, that the realty company, at the time stated, was the owner of a building which was being constructed on the north side of Forty-Sixth street, about 205 feet east of Sixth avenue, and was engaged in supervising such construction; that it had let a contract for the construction of the metal framework of the building to the defendants Pole and Schwandtner, who at the time referred to were engaged in carrying out the same; that on the 2d of March, 1904, the plaintiff, an employe of a third party, to whom the realty company had let a contract to put in the steam fittings, was at work in the building, and while thus engaged the building .suddenly and without warning to him collapsed, and he sustained very serious injuries; that the city of New York was authorized, and it was its duty, to abate within its limits all nuisances dangerous to the public; that it had negligently and carelessly permitted the erection of said building, which was on the day specified, and had been for some time prior thereto, dangerous and a public nuisance, of which it had knowledge, or by the exercise of reasonable care should have known; that the collapse of the building and the injuries to the plaintiff were caused by the negligence and carelessness of the defendants in certain Specified particulars relating.to the construction of the-.building, and

It is somewhat difficult to determine from the allegations of the complaint whether the cause of action attempted to be alleged against the city is for negligence or nuisance; but inasmuch as it was contended upon the oral argument of the appeal by plaintiff’s counsel, and the same contention is made in the brief presented by him, that it is for a nuisance, I shall, in disposing of the question presented, assume that to be the cause of action alleged. At the trial no proof was offered that the plans and specifications of the building as approved by the building department were defective, or, if so, to such an extent that the construction of the. building itself would necessarily result in a nuisance, either public or private. The plans and specifications were not put in evidence, and if they had been, and it had appeared therefrom, or from other evidence, that they were defective, the action of the building department or the officers connected therewith in approving the same would not have rendered the city liable. The building department is not an administrative department of the city. It is a bureau created by statute to perform a public service, in which the city itself has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, and for any neglect, either of omission or commission on the part of the officers connected with such bureau, the city is not liable. Maximilian v. Mayor, 62 N. Y. 160 , 20 Am. Rep. 468 ; Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46 , 42 N. E. 405 , 30 L. R. A. 660 , 51 Am. St. Rep. 667 ; McGuinness v. Allison Realty Co., 46 Misc. Rep. 8 , 93 N. Y. Supp. 267 , affirmed 111 App. Div. 926 , 97 N. Y. Supp. 1141 ; Connors v. Mayor, 11 Hun, 439 . In Connors v. Mayor, supra, the action was brought against the city to recover damages for injuries sustained by the plaintiff’s intestate by the fall of a building. It appeared that the building had been practically consumed by fire, and to such an extent that the walls became unsafe. One of the walls subsequently fell upon the intestate, and so injured her that she died. The court held that the duty of examining the building and structure after the fire was vested in the department of buildings, and that the officers and agents thereof were not the agents of the city, for which reason it was not liable.

But it is contended that the building, by reason of the defective materials used and the methods adopted in construction, was a public nuisance, because it was a menace to persons using the public street upon which it abutted; that this fact was or should have been known to the city, and, since it was obligated to keep the streets in a reasonably safe condition for public travel, it became liable to any person who sustained injuries from the collapse of the building, even though such person was not at such time upon the street. The building at the time of the collapse had reached a height of 120 feet above the street. It stood entirely upon private property. The entrance to it was 5 or 6 feet from the nearest edge of the sidewalk. The street upon which it abutted was between 50 and 60 feet wide, and the sidewalk about 15 feet. If it be assumed that the condition of the structure, immediately preceding its collapse, was such that it did in fact imperil the

“Assuming that the evidence established, as against the defendant city, that a nuisance to its knowledge existed upon private property adjacent to a public street of such a character as to make it dangerous for persons to go upon or travel over such street, that the city had power to abate such a nuisance that it failed to exercise such power, and that by reason of such failure the plaintiff sustained the injury complained of, is the defendant liable?”

The learned justice, after a consideration of numerous authorities bearing upon the subject, reached the conclusion that the question propounded should be answered in the negative. He said:

“The conclusion is reached that a municipality, authorized by its charter or by general statute to suppress a nuisance wholly upon private property, is not liable to a person who sustains injury by reason thereof, because of the fact that such municipality failed to pass an ordinance prohibiting the same, or failed to enforce such ordinance if passed, notwithstanding its continuance rendered travel upon a public street of such municipality dangerous and unsafe.”

In James’ Adm’r v. Trustees of Harrodsburg, 85 Ky. 191 , 3 S. W. 135 , 7 Am. St. Rep. 589 , the intestate, while traveling upon a public street, was struck by a stone thrown from adjacent private property where blasting was carried on, to the knowledge of the officers of the defendant. It was held that the failure of the corporation to provide the means of abating a nuisance, altogether on private property, or the omission of its officers to abate it when the means are furnished, gives no right of action against the corporation to those who are . injured by its neglect of duty.

In Hubbell v. City of Viroqua, 67 Wis. 343 , 30 N. W. 847 , 58 Am. Rep. 866 , the plaintiff, while traveling upon a public street, was injured by a bullet fired from a tent located on private property. It was held that a recovery could not be had; the court saying:

“Persons erecting such structures near a public highway, if they 'erect or maintain them in such manner as to interfere with the safety of persons traveling such highway, may be answerable for any damage caused by the existence of such structures to persons traveling such highway; but they do not constitute an insufficiency of the highway itself, within the meaning of the statute, so as to render the town, city, or village in which they are situated liable for the damage caused by their existence.”

In Cain v. City of Syracuse, 95 N. Y. 83 , it was. held, that, notwithstanding the city by its charter had power to demolish walls of

It is a somewhat startling proposition, and to which I am not ready to assent, in the absence of controlling authority on the subject, that because a building in the course of erection by a private person, entirely upon private property, may fall, and by reason thereof possibly be a menace to persons .using the public streets, the municipality thereupon becomes liable to respond in damages for the injuries sustained by persons at work in the building at the time it falls. My conclusion is that the complaint against the city was properly dismissed, and that the judgment to that ettect should be affirmed.

The appeal of the Allison Realty Company presents a somewhat different question. It was the owner of the real estate, and had entered into a contract with the defendants Pole & Schwandtner for the construction of the metal framework of the building. It had a right to construct a building upon its own land, and in doing so did not subject itself to liability for damage to others, except upon the theory of negligence, unless such damage was the necessary consequence of or sprang from the construction itself, in which case it might be held liable for a nuisance. Bohan v. P. J. G. L. Co., 122 N. Y. 18 , 25 N. E. 246 , 9 L. R. A. 711 ; McKeon v. See, 51 N. Y. 300 , 10 Am. Rep. 659 . Having the right to construct the building, it could do so itself or through an independent contractor, and if it chose the latter it could not be made liable for his negligence, providing it was free from negligence in making the selection. It is well settled that where an owner of real estate employs a competent contractor to erect a building thereon, and exercises due care in providing him with suitable plans and specifications for the construction, and assumes no control or supervision over the work, he is not liable for the negligence of the contractor, either in the selection of the materials or the execution of the work itself. Burke v. Ireland, 166 N. Y. 305 , 59 N. E. 914 ; Hexamer v. Webb, 101 N. Y. 377 , 4 N. E. 755 , 54 Am. Rep. 703 . If, however, the construction of the building itself were a nuisance, then he could be held liable, irrespective of the contractors’ negligence; and this upon the theory that one who participates in the creation of a nuisance, or in maintaining it, does an unlawful act, and, if damage be sustained in consequence, then liability 'attaches. Ahern v. Steele, 115 N. Y. 203 , 22 N. E. 193 , 5 L. R. A. 449 , 12 Am. St. Rep. 778 ; Finkelstein v. Huner, 77 App. Div. 424 , 79 N. Y. Supp. 334 , affirmed 179 N. Y. 548 , 71 N. E. 1130 ; Uggla v. Brokaw, 117 App. Div. 586 , 102 N. Y. Supp. 857 .

Here, as in the complaint against the city, the plaintiff contends that the action is to recover damages for a nuisance, and not for negli

“I examined the plans at the start-off of the building. They were filed in the office. * * * Those plans were at that time on file in the office of the building department. I noticed no particular defects, simply what is generally noted in all buildings in the course of their erection, such as bolting, etc.”

Just what the witness meant by the use of the words, “such as bolting, etc.” is not apparent; but it is clear that he referred, not to the plans, but to the work of construction. This witness also testified, as did another, that the plans and specifications had been approved by the building department. This constitutes substantially all the proof which was offered as to the plans and specifications, and it rebuts, rather than warrants, a conclusion that they were defective.

The complaint alleged that the realty company, notwithstanding it had let a contract for the construction of the building, supervised its construction. No proof whatever was offered tending to establish this allegation. The foreman employed by the contractors gave the only evidence bearing on the subject, and this was:

“Both Mr. Pole and Mr. Schwandtner were on the building at that time off and on through the week. This is also true of Mr. Allison.”

Who Mr. Allison is does not appear; nor does it appear that he was in any way connected with the Allison Realty Company, or that he ever assumed to direct or superintend the erection of the building. Simply because a person happens to have a name which corresponds in part to the name of a corporation falls far short of establishing that such person is an officer of the corporation, or is authorized to or can bind it by any act'of his. No proof was offered that the contract,ors were incompetent, or that the realty company did not exercise due care in entering into the contract; nor was any proof offered to

At the close of the trial, therefore, the evidence tended to establish, so far as the realty company was concerned, the following facts: That the plaintiff was injured while at work on the building, by reason of its collapse; that'the building was being constructed by independent contractors, who, so far as appears, were competent; that the plans and specifications for the construction of the building had been approved by the building department of the city, and no defects appeared therein; that the realty company did not superintend the erection of the building or exercise any control over the contractors, nor did it have any knowledge that prior to its collapse it was in a dangerous condition or liable to fall. Under such circumstances I do not think a cause of action was proved against the realty company, and the finding of the jury to the contrary is against the evidence. If the owner had been constructing the building itself, or superintending the construction, then it is possible that it would be liable under the rule, “res ipsa loquitur.” Mullen v. St. John, 57 N. Y. 567 , 15 Am. Rep. 530 ; Griffen v. Manice, 166 N. Y. 188 , 59 N. E. 925 , 52 L. R. A. 922 , 82 Am. St. Rep. 630 . But when it appeared that the building was being constructed by independent contractors, over whom the owner had no control, that rule, as against the owner, did not apply. Cross v. Koster, 17 App. Div. 402 , 45 N. Y. Supp. 215 ; Hexamer v. Webb, supra.

I am of the opinion, therefore, that the judgment dismissing the complaint, so far as the city is concerned, should be affirmed, with costs, and the judgment against the realty company and the order denying a motion for a new trial should be reversed, with costs to it to abide the event of the action. .

INGRAHAM, RAUGHRIN, and HOUGHTON, JJ„ concur. PATTERSON, P. J., concurs in the opinion so far as it relates to the city, and in the result as to the Allison Realty Company.