Appeal from Trial Term, New York County.
Action for personal injuries by Jacob Silverman against Jacob Binder and another. From a judgment entered on a verdict for $3,000 in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed.
In an action against the owners of a building for injuries to a servant of a contractor for a portion of the work, evidence held insufficient to show that defendants were at the building on the day of the accident, and instructed plaintiff and his co-workers that the walls were ready and safe for them to go to work.
[115 N.Y.S. 55] Frank
Verner Johnson (Charles J. Fay, of counsel), for appellants.
Leo Lerner (Alfred D. Lind, of counsel), for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
The defendants were the owners of a building in process of erection. They furnished the materials, but entered into contracts with various firms to do the different kinds of work required. They made a contract with Glick & Allen for the mason work and with Levine & Posner for the iron work. Plaintiff was an iron worker employed by Levine & Posner. Upon the day of the accident the plaintiff and three other iron workers were engaged in laying the iron beams upon the walls which had been built by Glick & Allen, and were level with the street, about 11 feet or 12 feet high, and about 16 inches thick. They had been working upon these walls in laying the iron beams up to about half past 3 in the afternoon. Planks were laid on top of the wall. At this time Green, who was in charge of the iron workers, and Kaplovitz were laying a beam. As they lifted the beam, they called Silverman, the plaintiff, to push out the plank so that it should drop into the cellar, in order that they might be able to set the beam in the right place. Silverman pushed the plank with his foot, some bricks fell from the wall, and he fell with them into the cellar, and sustained the injuries complained of.
The learned court submitted the case to the jury upon the theory that the defendants had personally invited the plaintiff upon this wall upon the assurance that it was in a safe and proper condition. He charged:
[115 N.Y.S. 56] " Upon the theory of that testimony, I have allowed this case to go to you as to the liability of these owners; that theory being that on inquiry being made by Green of the defendants he was told the wall had been constructed for two or three days; that everything was ready and to go ahead. I therefore charge as matter of law that, if Silverman went to work on the assurance of the defendants that this wall had been completed for two or three days and everything was ready, it was a species of invitation which carried with it a presumption that the walls were in a safe and proper condition so far as their construction was concerned to enable Mr. Silverman to do the work that he went there to do."
" But the pivotal point in this case is: First, did Silverman and Green have this talk with Binder and Baum that morning, and were they told by either of those defendants to go ahead with that work on that wall, because it had been ready for two or three days? If you find that no such talk took place, that is the end of the case; you must find for the defendants."
Green, who was in charge of the iron workers, testified:
" I got to the building of Binder and Baum about 8 o'clock in the morning. When I got there, Mr. Baum was on the job and another man.*** The Mr. Baum that I saw there that morning was one of the firm of Binder & Baum. I asked him if everything is ready, if I should go to work. He said to me: ‘ We are ready about two or three days. We are waiting for you fellows that you should go ahead and put the beam up, because we want to put up the scaffold to go ahead with the building.’ ***I did ask Mr. Baum if everything was ready and if I should go to work with my men. He said: ‘ I am waiting for you about two days. Why don't you come up the day before?’ I told him: ‘ That is not my ...