Appeal from Special Term, New York County.
Action by Alma H. Potter, as administrator, against Charles P. H. Gilbert. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed, with leave to amend the complaint.
[115 N.Y.S. 426] Leavitt J. Hunt (Robert McLeod Jackson, on the brief), for appellant.
William B. Hornblower (W. W. Miller and J. Norris Miller, on the brief), for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
The demurrer is upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. The action is brought to recover for the death of Alvin Potter, alleged to have been caused by the negligence of the defendant. On the 1Oth day of September, 1906, the decedent was in the employ of George A. Varney & Co., as a carpenter, working on a building which his employer was erecting at Mineola, Long Island, under a contract with Robert Graves, who was the owner of the premises upon which the building was being constructed. The death of Potter was caused by the collapse of one of the walls of the building while in process of construction.
The plaintiff alleges: That defendant was an architect and drew the plans and specifications, and undertook and agreed to supervise, and did supervise, the erection and construction of the building for the owner, under the contract between the owner and the employer of decedent for the erection thereof; that the building was of concrete construction, and the outer walls had been erected to the height of 20 feet " when *** a part of the walls of said building, known as the east wing, collapsed and fell down" ; that " defendant, his agent or agents, employe or employes, had the supervision of the construction of said buildings and walls, when the same fell down" ; that it was essential to the safety of a large number of persons who were constantly engaged in work in and about the building that it " be constructed according to proper plans and specifications, in a proper manner, of proper materials, and under competent superintendence" ; that it was the duty of the defendant to furnish proper plans and specifications; that he failed to do so; that " it was the duty of the defendant, his agents and employes, to properly superintend the construction of said building" ; that he failed to do so; that the wall " collapsed or fell by reason of the failure or negligence of the defendant, his agents and servants, to use due diligence in the supervision of the construction thereof" ; that it was the duty of " defendant, his agents and employes, to condemn, as unsound or improper, the wall that fell down, if the same had been constructed improperly" ; that the wall was constructed improperly, and the construction was not condemned; that it was necessary to have the work performed under the supervision and direction of a person skilled in such construction; that defendant undertook to supervise the work; " that by reason of the negligent manner of performing said work, said building and wall collapsed," causing the death of plaintiff's intestate while in the performance of his work and without negligence on his part; that " said building or wall fell or collapsed by reason of the negligent and improper manner of construction and erection of said building [115 N.Y.S. 427] while under the supervision of the defendant, his agents or servants" ; that the improper construction and erection " was known to the defendant, his agents and servants, or should have been known if he or they had exercised reasonable diligence in the performance of his or their duties."
An architect, in preparing plans and specifications for the construction of a building under employment by the owner, is following an independent calling and is doubtless responsible for any negligence in failing to exercise the ordinary skill of his profession which results in the erection of an unsafe structure whereby any one lawfully on the premises is injured ( Burke v. Ireland, 166 N.Y. 305, 59 N.E. 914); but it will be observed that there is no charge of negligence against the defendant with respect to the preparation of the plans and specifications for the erection of the building. The plaintiff does allege that the architect prepared unsafe plans and specifications, but there is no allegation that the collapse of the wall was owing to any defect in this regard. It may well be that an architect, acting under a contract with the owner, by which it is his duty to supervise the construction of the building, who knowingly permits a departure from the plans or specifications, would be liable to a party injured thereby, and that he would also be liable for failing to condemn any improper work which he discovers; but there is no allegation that the architect permitted a departure from the plans or specifications, or that he knew there had been a departure therefrom in time to remedy the defect before the collapse of the wall. The charge in that regard is in the alternative, that he knew, or should have known, had he exercised reasonable diligence.
It is well settled that on demurrer an alternative allegation is to be construed against the pleader and most favorably to the party demurring, for that is a matter of substance, and both things are not charged; and under this rule the charge is merely that the architect failed to exercise due diligence in supervising the construction. The allegation that it was the duty of the defendant to condemn the wall is insufficient to show negligence, for the reason that the facts from which the duty flowed are not set forth. At most, then, the complaint merely charges an omission of duty on the part of the architect while acting for his principal, the owner, which constitutes only nonfeasance for which he may be liable to his employer, but is not liable to third parties. Denny v. Manhattan Co., 2 Denio, 115, affirmed 5 Denio, 639; Murray v. Usher, 117 N.Y. 546, 23 N.E. 564; Burns v. Pethcal, 75 Hun, 442, 27 N.Y.Supp. 499; Van Antwerp v. Linton, 89 Hun, 417, 35 N.Y.Supp. 318.The architect would be liable to his employer, the owner, for a failure to properly supervise the work; but a failure in this regard amounting to no more than nonfeasance would not give rise to a cause of action in favor of a third party, whose claim would merely be that, if the architect had attended to his duties more diligently, he would have discovered a departure from the plans or specifications by the contractor and might thus have prevented the accident. Notwithstanding the fact that the architect agreed with the owner to supervise the work, if he saw fit to breach his contract and not commence the supervision, I presume it would not be claimed that [115 N.Y.S. 428] he would be liable to an employe of the contractor injured because the plans and specifications were not followed, even though it might be shown that if the architect had performed his contract with the owner and properly supervised the work the accident would have been avoided.
It can make no difference in principle at what stage of the work the architect violates his contract with the owner, or whether the violation be a total or only a partial breach. The architect may owe a duty to the owner to visit and inspect the work hourly, daily, or weekly; but he owes no duty to the employes of the contractor to remain on the ground any given length of time or to inspect the work at given intervals to see that the plans and specifications, which fully and definitely prescribe materials and dimensions and quantities, are followed by the contractor, who is presumed to be competent or to employ a superintendent or foreman competent to follow them. It was the duty of the employer of the decedent under his contract with the owner to follow the plans and specifications. The supervising power conferred upon the architect was to insure this result for the protection of the owner. If the architect were guilty of any affirmative act which contributed to the accident, as by directing a departure from the plans or specifications, or the use of improper materials, or knowingly suffering such departure from the plans or specifications, or such use of improper materials, or failing to condemn improper work, he would doubtless be liable; but there is no such charge made in the complaint. The architect was authorized to condemn materials and work which did not conform to the requirements of the plans and specifications, but this gave rise to no duty on the part of the architect towards the employes of the contractor to remain upon the premises and be vigilant in scrutinizing the work of the contractor. The architect owed the decedent and every one lawfully on or about the premises the duty of preparing plans and specifications under which the building could be constructed with safety, and the decedent's employer owed him the duty of following the plans and specifications; but the architect owed no duty of active vigilance to the decedent to supervise the work of the employer of the decedent, although he may have owed such duty to the owner by whom he was employed.
It follows therefore that the complaint fails to state a cause of action, and the interlocutory judgment should be affirmed, with costs, but with leave to plaintiff to amend on payment of the costs of the appeal and of the demurrer.
CLARKE and SCOTT, JJ., concur.
MCLAUGHLIN, J. (dissenting).
The defendant is an architect and was employed by one Graves to prepare plans and specifications for a proposed building of concrete construction. The plans were accepted, and a contract let for the construction of the building under the supervision of the defendant. During the progress of the work of construction a section of one of the out side walls collapsed, and plaintiff's intestate, an employe of the contractor, was killed. This action is brought to recover the damages alleged to have been sustained upon [115 N.Y.S. 429] the ground that the death of the intestate was caused by the negligence of the defendant in furnishing improper plans and specifications and in failing to properly supervise the work as it ...