DeLay v. Roman Catholic Church of St. Paul , 84 N.Y.S.2d 383 ( 1948 )

In an action against the Roman Catholic Church of St. Paul, the owner of the building in which the alleged accident occurred, and against Thales Co., Inc., the general contractor engaged by that owner to repair ornamental cornices in that building, brought by an employee of a subcontractor to recover for injuries sustained when, during progress of the work, an ornamental plaster cornice fell upon him, judgment was granted dismissing the complaint as to both the owner and the general contractor at the close of plaintiff’s ease. As to respondent Thales Co., Inc., judgment reversed upon the law and the facts and a new trial granted, with costs to appellant -to abide the event. As to respondent the Roman Catholic Church of St. Paul, judgment unanimously affirmed, with costs. In our opinion the proof adduced made out a prima facie ease against respondent Thales Co., Inc., which had contracted to repair the ornamental plaster; but did not constitute a prima facie case against the owner, who had so contracted for the repair thereof. (Kowalsky v. Conreco Co., 264 N. Y. 125; Mullin v. Genesee County Elec. Light, Power & Gas Co., 202 N. Y. 275.) Nolan, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.