Martin v. Tribune Ass'n

Barnard, P. J.: . The general rule is that he who does the injury must respond. The exception to it is that the master shall be held for the damages of a servant whom he selects. The master acts by the servant. The sole question in this case is whether the employment of the contractor is an independent one. If it was, then the relation of master and servant does not exist, and there is no liability upon the defendant’s part for the negligent acts of the contractors or their employes. There can be no question but that the employment was independent. The defendant agreed with Batterson for the entire granite- material needed, and with O’Brien for other material and for work necessary to complete the building and structures required. The defendant had nothing to do in respect to the worK, except to see that it was done according to the terms of the contract. The case is covered by the case of McCafferty v. The Spuyten Duyvel, etc., Railroad (61 N. Y., 178). The defendant did not employ the workmen and had no power to discharge them, “hence the rule of respondeat superior applies, and the principal for whom the men were working, and by whom they were employed, and not the defendant, is liable for the damage done to the plaintiff.” The principle was again upheld in King v. New York Central and Hudson River Railroad Company (66 N. Y., 181). The case ' is not one where the defendant is rendered liable because the work [393] contracted for was a trespass or was a nuisance, or was performed according to contract, and the result occasioned the'injury. No complaint is made against the completed structure.. The contract was neither for a trespass or nuisance. The power to permit the defendants to remove the sidewalk and erect under it a vault was given by the legislature to the city authorities. The defendant obtained permission to build this vault, and neither trespass or nuisance can be alleged against an act which, is [permitted in the streets of the city of New York by legislative and municipal authority. (Congreve v. Smith, 18 N. Y., 79; People ex rel. Murphy v. Kelly, 76 id., 475; Irvine v. Wood, 51 id., 224; Creed v. Hartmann, 29 id., 591.) The principle of those cases is not questioned in Mairs v. Manhattan Real Estate Association (89 N. Y., 498). It was held in that case that permission to build a vault under the sidewalk gave no right to collect the water from the street and throw it in the excavation and so upon a private owner adjacent. As to passengers upon the street the act done was lawful. The structure being lawful all the acts necessary to be done in completing it were collateral to the undertaking. If the fence was insufficient, or if the contractor went beyond the permit in obstructing the street, these acts are to be chargeable to the persons who did them. The plaintiff should, therefore, have been nonsuited. The judgment must be reversed and-.a new trial granted, costs to abide event. Dykman, J., concurred; Pratt, J., not sitting. Judgment and order denying a new trial reversed and new trial granted, costs to abide event.