Frawley v. Miller

Guy, J.: Action for damages to plaintiffs’ premises from defendants’ negligence. [865] Defense, general denial. A judgment by default for same occurrence has been recovered against defendant Ahlers who was an independent contractor. On January 17,1925, Ahlers, an independent contractor, installed a pole in yard of defendants’ premises No. 1688 Third avenue. The pole fell and plaintiffs sustained a property damage of $130. Plaintiffs proved the erection and fall of pole and claimed and oral promise by defendants to repair the damage. Defense proved that pole was erected by Ahlers, an independent contractor; denied in effect any promise to repair damage and proved that defendants did not interfere with or control the independent contractor. Defendants are not liable for the neglect of their independent contractor. If a promise to repair damage done by independent contractor is relied on it must be pleaded. No recovery on such a theory can be had under a mere averment of negligence. (Roemer v. Striker, 142 N. Y. 134, 136, 137.) Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs. All concur; present, Guy, Bijur and Mullan, JJ.