Matter of Trustees of the New York and Brooklyn Bridge-Engel v. The Eureka Club.

APPEAL from order of the General Term the motion for a new trial should have been

Engel v. The Eureka Club.

It made a contract with a competent builder makes the servant his representative in his to alter the building thereon in accordance business. with a plan adopted. The builder was to But the exigencies of affairs frequently refurnish the new materials necessary and do quire that persons exercising independent the work for a fixed price. The improve-employments should be intrusted by owners ment contemplated the taking down of a of property with its improvement, and in vabrick wall, 16 feet high, on the north line of rious relations and under varying conditions the premises, adjoining premises owned by they are employed, not as servants, but as one Ihrig, occupied in part by plaintiff as a independent contractors to execute contracts tenant. The wall formed one side of a drive- which the person who secures their services way on defendant's premises, and was roofed is unable to execute himself, or the execution over. The roof was formed by rafters ex- of which he prefers to commit to another. tending from the main building to the brick The duty which the contractor owes is dewall, and fastened to and resting upon a fined by the contract or implied therefrom. plate on the top of the wall, secured by bolts, In such cases the maxim "Qui facit per alium and was covered with boards and shingled. facit per se" has no appropriate application, 103] *The wall had been erected thirty or and there is no reason founded upon public forty years, and was 8 inches thick and rest-policy or the relations between the parties to ed 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 3 or 4 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, and her child, who were in the yard near the wall, were killed.

the contract, which should subject one party to the contract to liability to third persons for the negligence of the other. The principle that no liability on the part of the innocent party in such cases exists has become the settled doctrine of our law. It leaves an adequate remedy to the party injured, against the real author of the wrong. There are well-understood exceptions to this rule of exemption. Cases of statutory duty imposed upon individuals or corporations; of contracts which are unlawful, or which provide for the doing of acts which when performed will create a nuisance,—are exceptions. In cases of the first-mentioned class the power and duty imposed cannot be delegated so as to exempt the person who accepts the duty imposed, from responsibility; The evidence tends to show culpable negli and in those of the second class exemption gence in the manner of taking down the wall. from liability would be manifestly contrary It was shown that in consequence of its to public policy, since it would shield the weakened condition, by reason of age and one who directed the commission of the the decay spoken of, common prudence re- wrong. Storrs v. City of Utica, 17 N. Y. quired that precautions should have been 104, 72 Am. Dec. 437; Lowell v. E. & B. R. taken to prevent its falling, either by shor-R. Co. 23 Pick 24; Hole v. S. S. R. Co. 6 H. ing 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. N. Y. C., etc., R. R., 66 N. Y. 182, 23 Am. Rep. 37. 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 *104] and by his appointment, and the master, who selects and controls the servant,

& N. 488; Butler v. Hunter, 7 id. 826. There are cases of still another class where the thing contracted to be done is necessarily attended with danger, however skilfully and carefully performed, or, in the language of Judge Dillon, is *"intrinsically [*105 dangerous," in which case it is held that the party who lets the contract to do the act cannot thereby escape from responsibility for any injury resulting from its execution, although the act to be performed may be lawful. 2 Dillon on Mun. Corp. § 1029, and cases cited. But if the act to be done may be safely done in the exercise of due care although in the absence of such care injurious consequences to third persons would be likely to result, then the contractor alone is liable, provided it was his duty under the contract to exercise such care. McCafferty v. L. D. & P. M. R. R. Co. 61 N. Y. 178, 19 Am. Rep. 267; Conners v. Hennessey, 112 Mass. 96; Butler v. Hunter, supra.

The application of these principles to this case exonerates the defendant from liability. The taking down of the wall was not intrinsically dangerous. The only danger to be

Engel v. The Eureka Club-Platt v. Mickle.

contractor to raise the roof, in which work a derrick is employed extending over a sidewalk on which people are constantly passing, is not required to place a barricade across the sidewalk, or place a person there to give warning, in order to relieve him from liability for injury to such travelers, occasioned by the negligence of the contractor. Vanderpool v. Husson, 28 Barb. 196.

by a contractor, which is due to a defect in an The fall of a building while being remodeled old wall which he was ordered to use, renders the owner liable. Horner v. Nicholson, 56 Mo.

220.

The owner, and not the contractor, is llab'e for the falling of a wall, which is due to improper plans and specifications. Lancaster v. Connecticut Mut. L. Ins. Co. 92 Mo. 400. Liability of the owner for injury done by the falling of a roof from a building adjoining a highway, because it was not well built, cannot be avoided on the ground that he employed an independent contractor to furnish the material and perform the work. Wilkinson v. Detroit Steel & Spring Works, 73 Mich. 407. negligence of a contractor in erecting it; yet if The owner of a building is not liable for the a wall in the course of erection is so dangerous as to constitute a nuisance he is liable for the 30 Md. 179. Deford v. State, use of Keyser,

consequences.

apprehended was in doing it carelessly or unskilfully. It was in the manner of doing it, and not in the thing itself. The danger of leaving the wall without support was obvious, and could have been easily avoided, and the usual method required that precautions should be taken. It was the duty of the contractor to take such precautions, because it was implied in his contract that he should take down the wall in a careful and proper manner. Pollock, C. B., Butler v. Hunter, supra. It does not change the situation of the defendant that the wall had become weakened by age and decay. It is the general duty of the owner of premises to keep the walls of his building in a safe condition, so that they will not endanger his neighbor by falling; and if he negligently omits its performance, and his neighbor is injured, the injury is actionable. Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530. But the evidence is undisputed that the wall was safe and would not have fallen if it had been left as it was when the contract was made, supported by the roof. It was not a menace in its existing condition. It became dangerous only in consequence of the manner in which the contractor proceeded to take it down. It would probably have been *106] less liable to fall, although deprived of the support of the roof, if the wall had been in perfect repair when the contractor entered upon the work. But we perceive no causal connection between the neglect to repair and the injury to the plaintiff's intes- PLATT, as Trustee, etc., v. MICKLE et al. tate. The sole cause, in a legal sense, was the negligence of the contractor in omitting to do what he was bound to do. The performance of his duty would have prevented the injury. The exceptions to the admission or rejection of evidence present no material error. The order of the General Term should be reversed and judgment of nonsuit should be entered, with costs to defendant. All concur.

Order reversed and judgment accordingly.

This rule applies to the employment of a contractor to make excavations near the foundations of a house which has a right to support. Bower v. Peate, L. R. 1 Q. B. Div. 321.

The negligence of a contractor in taking down a house connected with another by a party wall is not chargeable to the proprietor. Butler v. Hunter, 7 Iurlst. & N. 826.

The fall of the wall of a building because of the contractor's negligence will not make the owner liable. Robinson v. Webb, 11 Bush, 464. The owner of a building who has employed a

For injury caused by the fall of à defective and unsafe wall after it has been completed and caused by the negligence of an independent conaccepted the owner is llable, even if it was tractor who built the wall. Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 225. St. 69) 14 L. R. A. 828, upon exceptions to the See also note to Hawver v. Whalen (49 Oblo rule that an employer is not liable for acts of an independent contractor.

(Aff'g 45 N. Y. S. R. 750.)

Descent and distribution-widow next of kin.

Husband and wife are not "next of kin" to each other, and to extend the meaning of those either, so as to include the other, such an intenwords, when used in a testamentary gift by tion must definitely appear from the context or other portions of the will, or such a construetion be authorized by statute.

APPEAL from judgment of the General

Term of the Supreme Court in the first judicial department, entered upon an order made March 31, 1892, which affirmed a judg ment in favor of *plaintiff, entered [*107 upon a decision of the court on trial at Special Term.

trustee under the will of Rachel Miller, deThis action was brought by plaintiff, as ceased, to have his account settled and the balance in his hands distributed to those entitled.

The facts, so far as material, are stated in the opinion.

H. G. Harris, for appellant:

This case must be decided by the law as it existed and was understood at the date of this will. At the date of the will, 1847, "heirs" and "next of kin" were used in wills to include in their meaning the husband or widow. Ellis v. Lewis, 3 Harris, 310: De Kay v. Irving, 5 Den. 646; Wolfe v. Van Nostrand, 2 N. Y. 440.

The contention of the respondents that when

Platt v. Mickle.

the words "heirs" or "next of kin" are used in a will, they must be construed strictly to mean descendants or relations by blood, excluding husband or widow, is not founded on principle or authority. 2 Jarman on Wills, 61, 10 Ala. 303; Jewell v. Jewell, 28 Cal. 232; Cunning ham v. Doe, 1 Ind. 94; Nicholas v. Pursgell, 21 Iowa, 265; Brown v. Belvearde, 3 Kan. 41; 89 Mass. 72; Wade v. Cushman, 45 Me. 250; 14 Ohio, 140; Gibbons v. Fairland, 26 Penn. St. 217; Ely's Appeal, 84 id. 245; 4 Hawks, 393; Richards v. Miller, 62 Ill. 417; Knickerbocker v. Seymour, 46 Barb. 198; M. Ins. Co. v. Hinman, 15 How. Pr. 182; Betzinger v. Chapman, 88 N. Y. 487; Clark v. Lynch, 46 Barb. 68; In re Vowers, 113 N. Y. 559.

This court has indicated its intention of fully concurring in the principle that when a testator Invokes the statute of intestacy to assist him in the distribution of his estate, he is presumed to accept and adopt its provisions in full. Richards v. Miller, 62 Ill. 417; Gibbons v. Fair land, 26 Penn. St. 217; Ely's Appeal, 84 id. 245, 100 Mass. 348; Baskin's Appeal, 3 Penn. 304: Bailey v. Bailey, 25 Mich. 185; Cook v.

Cantlin, 25 Conn. 387.

portions as, having regard to the form in which the said estate shall then exist, such heirs and next of kin would have been then respectively entitled thereto and therein by law if my said grandson had been seised thereof in fee simple as an inheritance on the part of his mother, or possessed of the had inherited or become entitled thereto same, and he had died intestate and they from my said grandson George Benjamin Mickle."

The appellant wants us to hold that the words "next of kin" were not used in their strict technical sense, and that they should be so liberally construed as to include her; and she thinks there would be justification for our so doing in view of the scheme of the will and of the circumstance of her marital relation. But there is nothing in this, or in any other part of the will, or in the fact of her Any argument on behalf of respondents that marriage, which, in any view, could lead us the Code establishes or recognizes a meaning for the term heirs at law and next of kin ex- to suppose that the testratrix had in her 108] cluding the widow is fallacious. Whit-mind persons who would not answer strictly taker v. Whittaker, 6 Johns. 112; Schuyler v. to the designation of next of kin of her Hoyle, 5 Johns. Ch. 112; Betzinger v. Chapman, grandson. It is conceded, and it perforce 88 N. Y. 494; Curt v. Russ, 1 P. Wms. 383. Any contention of the respondents that the must be conceded, that in construing this estate to be distributed is to be considered as testamentary provision we must be guided real estate and not as personal property does not benefit the respondents. Bundy v. Bundy, by what appears to have been the intention 38 N. Y. 421, 422; Woodward v. James, 115 id. of the testatrix. So far as its language The context and the whole will and the cir- goes, it is most explicit. Husband and wife cumstances of the particular case show testaare not and never were regarded as next of tor's intention to be to have the estate distrib- kin to each other. By the primary meaning uted in accordance with the provisions of the of these words only relatives in blood are intestate law, as if it were the property of Geo. understood. To extend their meaning so as Benj. Mickle at his decease. Doe v. Gallini, 6 B. & Ald. 640; Phillips v. Davies, 92 N. Y. 208; to include a husband or a wife, such an inCrozier v. Bray, 120 id. 366; Woodward vtention must definitely appear from the conJames, 115 id. 346; Shewabb v. Bartley, 2 M: & K. 149; Heard v. Case, 23 How. Pr. 546; Taggart v. Murray, 53 N. Y. 233.

359.

John W. Weed for respondents.

Gray, J. In the distribution of this trust fund, held by plaintiff as trustee under the provisions of the will of Rachel Miller, deceased, Andrew and George Mickle, sons of her deceased grandson, George Benjamin Mickle, claim to be entitled to share, to the exclusion of Lizzie Mickle, the widow of their father. She insists upon her right to share in it. upon the ground that she should be regarded as one of her husband's next of kin, to whom Rachel Miler by her will had given her grandson's share upon his decease. Turning to the will in question, which was made in 1847, we find that she had created a trust in one fourth of her residuary estate for the benefit of her grandson, during his life, and directed that such trust estate should determine upon his decease. I will quote her further language: "And I thereupon after his decease give, devise, and bequeath all his said one-fourth part of the said rest and residue of the said trust estate then being in the hands of my said executors and trustees, the survivor or survivors of them, their heirs, legal representatives, or successors, to such person or persons as shall 109] then be the heirs at law and *next of kin of my said grandson George Benjamin respectively, in such parts, shares, and pro

text or other portions of the will. In this case, in the utter absence of anything from which it might be possible to deduce such an intention, to give them the interpretation contended for would be to disregard a fundamental rule in such cases. The case is governed by Murdock v. Ward, 67 N. Y. 387, and the other authorities cited below by Judge Lawrence in his careful opinion. I find no authority for giving to these words an enlarged sense, in the absence of something in the context, or of some requirement of a statute, which would furnish the court with a reason for doing so. Here, as I have said, there "is nothing which, being rationally [*110 considered, would justify us in reading these words in any other than their strict legal sense, and therefore the judgment should be affirmed, with costs to the respondent to be paid by the appellant.

All concur.
Judgment affirmed.

"among my heirs and next of kin in the same Under a devise of property to be divided manner as it would be by the laws of the state of New York had I died intestate." the widow cannot share as one of the next of kin. Luce v. Dunham, 69 N. Y. 36.

A testator's widow who was married after the will was made is not included among his "next of kin," within the meaning of the will, where there is nothing in the context to show that he did not use the phrase as meaning rela312, 28 Am. Rep. 155. tives in blood. Keteltas v. Keteltas, 72 N. Y.

Under a wilf giving certain shares to tes

Platt v. Mickle-First National Bank of Chicago v. Dean.

FIRST NATIONAL BANK OF CHICAGO, Neg. Inst. ' 832; Way v. Richardson, 3 Gray,