Opinion
October 16, 1908.
I. Henry Harris, for the appellant.
John M. Zurn, for the respondents.
There seems to be no reason for the dismissal in the case of the defendant Tomanek, the owner of the property. In the absence of any evidence on that head, the presumption was that he was doing the work on his property, and erected the fence or shield in front of it, which, if so unsafely fastened as to be likely to fall into the street, was a nuisance ( Vincett v. Cook, 4 Hun, 318). The other defendant was in no way connected with the property or the work upon it.
The judgment should be reversed in respect of the defendant Tomanek, and affirmed as to the other defendant.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event, as to the defendant Tomanek. Judgment affirmed as to the defendant Tarrnowski, with costs. Order appealed from affirmed.