Laughlin, J.:
This action was brought to recover damages for personal injuries sustained by the plaintiff on the 19th day of July, 1901, by the fall of an elevator, alleged to have been due to the negligence of the defendant.
The firm of Turner & Holmes had the contract for the mason work on a building which was being erected at the time of the accident on premises known as Nos. 16 and.18 West Ninety-sixth street, borough of Manhattan, New York, and the plaintiff was in their employ as foreman of the bricklayers. About three weeks prior to the accident Turner & Holmes rented of the defendant a hod elevator for use on the job. The construction work had progressed at that time to about the second tier of beams. They had rented hod elevators of the defendant before, and it was their custom to give the defendant a few hours’ notice by telephone when they needed one. Nothing was said as to who should inspect or keep the elevator in repair. It is necessary to move the fixed parts of the elevator at the top, consisting of the head piece, guides and rigging, from floor to floor as the work progressed. It had been customary for the firm of Turner & Holmes to notify the defendant whenever anything was out of order with the elevator and when it was desired to have it moved, and the defendant then would inspect and repair or remove the elevator, as required, but there had been no request for inspection or repairs on the elevator at this particular job. There was a printed circular issued by the defendant specifying its charges for the use of elevators and engineers to operate them, but it was lost. The elevator was operated by an engineer who testified that he was in the employ of Turner & Holmes at the time. Whether he was furnished or sent by the *486defendant with the elevator does not expressly appear, blit he testified that he was paid by Turner & Holmes. It was conceded that he was on the payroll of both lessor and lessee -of the elevator. The accident was not caused by negligent operation, but by an unsafe and defective condition of headpiece. It is not claimed that the engineer had any duty with respect to inspection. The fall of the elevator was caused by the breaking of the wooden headpiece which supported the cables at the top. The plaintiff alleged that this headpiece was defective and unsound., and that the defendant failed to properly inspect it.
On a former appeal herein (123 App. Div. 378) this court held that the defendant was under no obligation to inspect the elevator, at least until called upon so to do by the firm of Turner & Holmes, and that the trial court erred in refusing to instruct the jury that the plaintiff could not recover unless they found that the headpiece which broke and caused the accident was defective and improperly constructed, when it was last placed and installed in position by the defendant, and that the accident was directly attributable thereto. On the new trial counsel for the defendant requested the court to instruct the jury in the language of the request which was refused on the former trial, and held proper by this court, to which the court responded : “ I understand that the plaintiff does not claim that this crosspiece was defective and improperly constructed when it was installed,” to which counsel for the plaintiff responded: “ That is correct; we do not claim that.” The court then said, “ That not being claimed, I see no necessity for charging that,” whereupon counsel for the defendant duly excepted. -Counsel for plaintiff thereupon stated to the court that he would prefer to have the request charged, and' thereupon it was charged. Counsel for the defendant thereupon requested the court to instruct the jury that in the absence of a special agreement no duty devolved upon the defendant to inspect the elevator after furnishing and installing a safe and suitable elevator and properly inspecting it on each occasion when it was moved, and the court so charged. Counsel for the defendant then requested the court to instruct the jury “ that the evidence in this case does not warrant a finding that any such special agreement existed between the defendant and plaintiff’s employers at the time of this accident,” and -the *487court so charged. On these instructions the defendant was entitled to a direction of a verdict, for no question was left for the consideration of the jury upon which a finding against the defendant could be predicated. After the court ruled on some further requests, bearing upon other points, one of the jurors inquired, ‘"'Would a general custom constitute an agreement ? ” whereupon counsel for the plaintiff stated, “A course of dealing, he means.” The court then said, “ Ton mean a course of dealing between the parties ?” to which the juror replied, “ The custom that was general.” The court then said: “ If you find there is any evidence to that effect, if there is any evidence from which you may infer that it is the general custom and that this was no exception to that general custom, then you may'come to the conclusion that there was such an agreement.” Counsel for the defendant duly excepted, and counsel for plaintiff requested the court to instruct the jury that by a general custom was .meant “ a course of dealing, between the parties,” whereupon the court said : “ Tes, a course of dealing between the parties, and which you infer or conclude existed from the evidence in this case.” Counsel for plaintiff then said, “ I thin'lc you should explain to the jury that you used a legal expression, ‘ course of dealing,’ ” whereupon the same juror inquired, “ A general custom between the parties in that particular case?” to which the court replied, “ I am not prepared to go so far as to hold that the general custom of parties other than the parties Turner & Holmes and this defendant — what was done in other tcases has no bearing on this particular case.” It is not expressly so stated, but it is evident that the court, by these further instructions to the jury, intended to permit the jury to hold the defendant liable for a failure to inspect and repair the elevator at times other than at the time of installing or moving it and without any request from the lessees, provided that the jury found an agreement to that effect based upon a general custom or course of business between the parties by which that had been done by the defendant in the past. We are of opinion that this was error. If there was no express agreement between Turner & Holmes and .the defendant, by which it was the duty of the defendant to inspect the elevator at other times, as the court instructed the jury, there is no evidence to sustain a finding that by custom or course of business an agreement could, be implied or *488that defendant had at other times inspected and repaired the elevator excepting when specially requested so to do by Turner & Holmes. Moreover, after properly inspecting and installing the elevator, or again moving, installing and inspecting it in its new position, it is difficult to see upon what theory there would, be any liability on the part of the defendant to the plaintiff, even though there were an agreement or a custom by which, as- between the defendant and Turner & Holmes, the former owed the duty to the latter of keeping the ■ elevator ■ in repair. That would be a mere contract duty for a breach of which it would he liable only to the party "With whom the contract was made. The hod elevator was not inherently dangerous. It could be used and operated safely by the exercise of ordinary card in running and inspecting and repairing it. It was perfectly lawful for the defendant to rent the usé of it, and if it agreed with the- lessee to inspect and repair the elevator, it would be liable to them for its failure to perform'its contract; but its' failure to inspect 'the elevator when once properly installed and left in a safe condition or properly reinstalled and properly reinspected and left in a safe condition, would constitute a mere breach of duty at most between it and Turner & Holmes. It owed no duty of active diligence to inspect and repair the elevator for the benefit of the employees of Turner & Holmes, provided the elevator was a suitable and safe appliance when last installed and was then properly inspected. That was a duty which their employer owed to them and which he could not escape by attempting to delegate it to another. If as between them and the lessor it was "the duty of the latter: to inspect and repair, then. they, could doubtless have had proper inspection and repairs made at the expense of the'lessor. The Case is quite analogous, I think, to the case of an architect whose duty as between him and his employer was to inspect tlié work and to require that the contractors construct a building according to ¡the ' plans and specifications, and by his failure so to do, which was a mere act of omission, a wall, improperly constructed, not according to .the plans and specifications,, fell, injuring a workman on ¡the building, and .this court held, and the Court of Appeals affirmed the decision, that" the architect did not owé any duty of active diligence to the employees of the Contractors. (Potter v. Gilbert, 130 A.D. 632" court="N.Y. App. Div." date_filed="1909-03-05" href="https://app.midpage.ai/document/potter-v-gilbert-5210163?utm_source=webapp" opinion_id="5210163">130 App. Div. 632; affd., 196 N.Y. 576" court="NY" date_filed="1909-11-30" href="https://app.midpage.ai/document/potter-v-gilbert-5480107?utm_source=webapp" opinion_id="5480107">196 N. Y. 576.)
*489It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingbaham, P. J., McLaughlin, Milleb and Dowling, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.