Opinion
December 6, 1907.
Michael Schaap, for the appellant.
Frank Verner Johnson, for the respondent.
The complaint alleges that the defendant, Pugh Co., was on November 28, 1902, and for some time prior thereto had been engaged in erecting a building at or near 32 West Sixty-fourth street in the city of New York, and had general charge, management and control of the said building and the erection thereof and the work thereon; that said building was over five stories in height and was being erected over sixty-five feet in height; that the defendant Batton was a sub-contractor of Pugh Co. in the performance of certain mason work and masonry on said building; that the plaintiff's intestate was employed by the defendant Batton as a laborer, and on November 28, 1902, while engaged in mixing mortar in front of the said building a heavy piece of masonry, terra cotta, brick or similar substance fell from the upper part of said building and struck the deceased causing injuries which resulted in his death; that there was no shed, roof, structure or other covering over the place where the deceased was at work or over the sidewalk in front of the said building, and that the deceased's injuries were caused by the neglect of the defendant in failing to provide a proper, safe or sufficient shed, roof or structure over the sidewalk in front of the building where the deceased was at work. It is then alleged that section 80 of the Building Code of the city of New York, approved on the 24th day of October, 1899, provides that "Whenever buildings shall be erected or increased to over sixty-five feet in height, upon or along any street, the owner, builder or contractor constructing or repairing such buildings shall have erected and maintained, during such construction or repair, a shed over the sidewalk in front of said premises, extending from building line to curb, the same to be properly, strongly and tightly constructed, so as to protect pedestrians and others using such streets." It is further alleged that an ordinance of the city of New York, continued in full force and effect by section 41 of the charter of the city of New York (Laws of 1897, chap. 378), provides that the owner or general contractor engaged in the construction or erection of any building over five stories in height "shall build or cause to be built a temporary roof structure over the sidewalk in front of said building," and that the injuries and death of the deceased were caused solely by the negligence of the defendants in that the said defendant, Pugh Co., failed to comply with the said provisions of the ordinance and Building Code.
The answer is a general denial. The case coming on for trial the complaint was dismissed as against Pugh Co. because the complaint did not state a cause of action on the authority of Koch v. Fox ( 71 App. Div. 288). It is quite clear that that case does not sustain the dismissal of the complaint. That was an action against the owner of the premises who was in Europe, and who had made a contract for the construction of the building with one Cabus; and it was held that the terms of the ordinance then in force were satisfied by a construction which requires compliance by the owner if he be doing the work by day labor or through contractors for separate parts, so that he retains charge and control of the building operation, and compliance by the general contractor if the work be all let by one contract, so that the contractor may be said to be independent, in that he has full charge and control of the entire work, subject only to such supervision as will insure to the owner compliance with the plans and specifications; that there was no difficulty in enforcing the ordinance against the general contractor. In this action it is alleged that the defendant Pugh Co. was the general contractor in charge of the building, and, therefore, the duty was imposed on the defendant by the ordinance and the charter to erect a substantial covering over the sidewalk so as to protect pedestrians and others using the street. Whether the deceased could be said to be a pedestrian is doubtful. He was engaged in mixing mortar to be used in the construction of the building; but if he was not a pedestrian, he certainly was lawfully using the street, and if the general contractor had complied with the provisions of the Building Code and charter and erected a proper structure over the sidewalk, the deceased would have escaped the injury which resulted in his death.
It is quite true that neither the Building Code nor the provisions of the charter gave to the deceased or to his personal representatives any new cause of action. His personal representatives have, under section 1902 of the Code of Civil Procedure, a cause of action against any person who has negligently caused the death of decedent and who would have been liable therefor if death had not ensued. The effect of the ordinance is to impose upon this general contractor a duty to construct and maintain over the sidewalk a shed strongly and tightly constructed so as to protect any one lawfully using the street in front of the building in course of erection. A failure to perform that duty is evidence of negligence which, when injury results gives a cause of action. It is a general rule that a violation of a duty imposed by a statute or ordinance is evidence of negligence which justifies a jury in finding a verdict against a person who has violated the statute or ordinance. ( Marino v. Lehmaier, 173 N.Y. 530; Rooney v. Brogan Construction Co., 107 App. Div. 258; Kiernan v. Eidlitz, 109 id. 726.) The distinction sought to be drawn between these cases and the present in that the deceased was not an employee of Pugh Co. is not material. The liability is not placed upon any obligation of an employer to his employee, but a duty imposed upon one engaged in the construction of a building adjoining a public highway of protecting those in the street during the construction of the building. This duty is imposed upon the owner or contractor, and while it is quite true that this court held in Koch v. Fox ( supra) that the duty is imposed upon the owner only in the event that he retains control over the building operations, where an independent contractor undertakes the obligation of building, it is clear that the ordinance and charter imposed a specific duty upon such a contractor, and a failure to perform that duty is evidence of negligence. In Conroy v. Acken ( 110 App. Div. 48) a new trial was ordered upon the ground that the question of the defendants' liability was for the jury, and this conclusion was affirmed by the Court of Appeals ( 185 N.Y. 566); but the question discussed in the Conroy case was not presented in this action, as it is here expressly alleged that the injury sustained by the deceased was the direct result of the negligence of the defendant, Pugh Co., in failing to comply with this ordinance.
I think a good cause of action was alleged and it was error to dismiss the complaint.
It follows that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
PATTERSON, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.