Engel v. Eureka Club

• Decision Date: 31 January 1893
• Parties: ENGEL v. EUREKA CLUB.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 100

32 N.E. 1052

ENGEL

v.EUREKA CLUB.

Court of Appeals of New York.

Jan. 31, 1893.

Appeal from supreme court, general term, fifth department.

Action by Daniel Engel, administrator of the estate of Frederica Engel, deceased, against the Eureka Club, for injuries to plaintiff's decedent causing her death. Defendant had judgment, and from an order of the general term granting a new trial, (18 N. Y. Supp. 945,mem.,) it appeals, Reversed.

Raines Bros., (Thomas Raines, of counsel,) for appellant.

Martin W. Cooke, for respondent.

ANDREWS, C. J.

We are of opinion that the motion for a new trial should have been denied. The defendant had purchased the premises in March, 1882, for its uses as a social club. It made a contract with a competent builder to alter the building thereon in accordance with a plan adopted. The builder was to furnish the new materials necessary, and do the work, for a fixed price. The improvement contemplated the taking down of a brick wall, 16 feet high, on the north line of the premises adjoining,-premises owned by one Ihrig, occupied in part by plaintiff as a tenant. The wall formed one side of a driveway on defendant's premises, and was roofed over. The roof was formed by rafters extending from the main building to the brick wall, and fastened to and resting upon a plate on the top of the wall, secured by bolts, and was covered with boards, and shingled.The wall had been erected 30 or 40 years, and was eight inches thick, and rested on a stone foundation. It had been worn away next to the driveway by contact with wagons, and the bricks had been broken along the line of contact to the depth of three or four inches. The wall on the Ihrig side was also in places decayed, and the mortar had fallen out. The defendant had never occupied the premises, and when the contract for repairs was made the keys of the house were given to the contractor. The contractor commenced the work of taking down the wall by removing the roof which covered it, and taking down the rafters, which left the wall wholly unsupported; and the day after the roof was removed the wall fell over towards the Ihrig lot, and the wife of the plaintiff, with her child, who were in the yard near the wall, were killed.

The evidence tends to show culpable negligence in the manner of taking down the wall. It was shown that in consequence of its weakened condition, by reason of age and the decay spoken of, common prudence required that precautions should have been taken to prevent its falling, either by shoring it up, or by removing the roof and the wall in sections. The evidence is undisputed that this was the common and usual proceeding, under similar circumstances. The officers of the defendant had no actual knowledge of the condition of the wall either before or during its removal, or how the work was being done, and they did not in any way interfere or direct in respect to the manner of doing the work. It is the general rule that a party injured by the negligence of another must seek his remedy against the person whose actual negligence it was which caused the injury, and that such person alone is liable. King v. Railroad Co., 66 N. Y. 182. The case of master and servant is an exception, and the negligence of the latter is imputable to the master where the servant, in doing the act which occasions the injury, is acting within the scope of his employment. This exception rests upon most satisfactory reason, because the servant, in the case supposed, is acting in place of the master, and by his appointment, and the master, who selects and controls the servant, makes the servant his representative in his business. But the exigencies of affairs frequently require that persons exercising independent employments should be intrusted by owners of property with its improvement, and in various relations, and under varying conditions, they are employed, not as servants, but as independent contractors, to execute contracts which the person who secures their services is unable to execute himself, or the execution of which he prefers to commit to another. The duty which the contractor owes is defined by the contract or implied therefrom. In such cases...