Petrie v. J. Henry Small Realty Co. , 125 N.Y.S. 937 ( 1910 )

Burr, J.:

Defendant was engaged in the construction of buildings in various parts of the borough of Brooklyn, and included among them were four houses upon Furman avenue, between Broadway and Bushwiclc avenue. A contract had been entered into between defendant and William A. Godbold, by which the latter was to provide all the materials and- perform all the work in connéction with the plumbing therein. Plaintiff was in the employ of Godbold as a journeyman plumber. On Hovember 17, 1909, the houses had been inclosed and the beams set in, but the floors had not been laid. A plank had been placed reaching from the front entrance of one of the buildings, which was about three feet above the level of the street, to the 'said street. While plaintiff was passing down the plank it broke, arid- he was thrown to.the ground and sustained injuries for which it is sought to make defendant responsible.

'The evidence fails to establish that it was the duty of the.'defendant to furnish the runway in question, or that it had done so. • It appears that defendant was- to furnish the timber, flooring, bricks, lime and cement to be uséd in the construction of said buildings, but made contracts with masons, carpenters, plumbers, stonemasons and others to furnish the.other materials and perform the.necessary work. It was. not necessary, in order .to obtain access to the buildings, that there should be this' runway, as other means were provided,, and this runway seems to have been constructed- by some one as a more con venient medns of passing in and out. There is no direct evidence that defendant furnished the plank which broke. This was about ten feet long, nine inches wide, and from an inch- and a- half to an inch and three-quarters, thick. J. H.' .Small, the president of defendant, testified that the only lumber which up to that time it had furnished consisted of beams, none of which was less than three inches in diameter.

- As further bearing upon the question of - who furnished the plank, there was uncontradicted evidence that .the custom is “ that the first one that gets on the job, who is in the employ' of the plumber or framer or carpentér, or whoever gets.there first, takes a plank and puts it up that “if it is necessary to'.make á runway: 'to go into the building, any of the contractors will- put up such runway'.”. The only evidence which in the slightest degree tends to connect defendant with the furnishing of the plank, or knowledge of its condition, is that of -a man who was a night watchman about the premise's, but who was subsequently discharged, who testified that, on the day before the- accident he called the attention of Mr. J. Henry Small,; defendant’s president, to the plank in question, and told him that'it was cracked, and that he replied, “That plank is-good because l ean use. it for two jobs more:” Small denies that any such conversation ever-took place. It appears that Mr: Small was" very seldom present at the-buildings, although his son, who was the superintendent, was there constantly.- If any complaint was to be made to any representative of the ..defendant, it would, seem more natural that it should liave been made to the superintendent;, who was constantly present, than to Mr. Small, Sr., who was only occasionally there. In view of this denial, and in view of the fact that defendant was" under no obligation to furnish runways, and that the material which constituted the runway was of a character such as would naturally be used by masons for scaffolding, and was not of the character of timber which "defendant was obliged tó furnish, we think that plaintiff has not established by a fair preponderance of evidence that any such conversation' ever took place. But if it did, it fell far short of establishing that the defendant had furnished the plank in question, or assumed the responsibility for its condition. At most, it could be deemed only an expression of opinion* on Mr. Small’s part with regard to a detail of the work, the performance of which devolved on others.

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred^

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.