Opinion
December 28, 1951.
Present — Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ.
Defendant City of New York entered into a contract with the third-party defendants-respondents for the construction of a sewer in Queens County. The contractor agreed to furnish all materials, labor, and appliances for the excavation, building, and completion of the sewer. All the work was done by the contractor's employees, of whom plaintiff was one. While plaintiff was in the excavation, a stringer or spreader placed across the width of the excavation to support the shoring on either side of the trench fell on him because the stringer itself was not sufficiently supported, or so a jury might find. In this action to recover damages for the ensuing injuries, plaintiff sought to hold the City of New York liable on the theory that it exercised such supervision over the work as to make it in effect a supervising or general contractor. The complaint was dismissed at the close of plaintiff's case because such retention of supervision was not shown, and the third-party complaint of the city against the contractor also was dismissed. Plaintiff appeals from the original and amended judgments insofar as his complaint is dismissed, and the city appeals from the amended judgment insofar as its third-party complaint is dismissed, asking for reversal of that dismissal only if the judgment dismissing the plaintiff's complaint is reversed. Amended judgment, insofar as appealed from, unanimously affirmed, without costs. Appeal from original judgment dismissed, without costs. In our opinion, the supervision by the city was solely for the purpose of assurance that the contract was being performed. ( Uppington v. City of New York, 165 N.Y. 222.)