122 Misc. 31 | New York County Courts | 1923
These are motions to dismiss separate indictments found' against each of the defendants above named accusing them;
The first counts appear to be, and upon the argument were conceded to be, found on the theory of public nuisance (a misdemeanor) committed and maintained by the defendants and resulting in the death of a named person, while the second counts are upon the culpable negligence theory. The second counts should have all been found, if found at all, as manslaughter in the second degree and not the first degree as in the instances of Moskowitz and Gaydica.
The defense say that the second count is for that reason worthless, that it must fail and be dismissed, and in support of that argument cite People v. Foster, 60 Misc. Rep. 3, 8, and People v. Quartararo, 76 id. 55, 56, 57. Their contention is that the second count of the indictments charges a crime, to wit, manslaughter in the first degree, but does not state facts constituting that crime or the converse; they state acts Avhieh constitute manslaughter in the second degree as defined by the legislature but do not charge that crime. In the latter case, quoting from the opinion of Judge Crane, it is said: “An indictment which alleged a crime but did- not state the acts constituting that crime would be bad. Likewise, an indictment which stated the acts without alleging the crime charged against the defendant would also be bad. Further, if the indictment charged one crime and the facts alleged showed that not that crime but some other had been committed, here also the indictment would be defective, as the indictment must not only charge a crime but allege the acts constituting the crime charged. People v. Dumar, 106 N. Y. 502; People v. Stark, 136 id. 538; People v. Klipfel, 160 id. 371; People v. Kane, 161 id. 380; People v. Corbalis, 178 id. 516.
“ The indictment in this case is clearly bad in that it charges the defendant with a crime punishable with ten years in State prison, whereas the acts alleged to constitute the crime show the commission of an entirely distinct offense punishable by a ■one year term.”
An indictment must contain “ a plain and concise statement •of the act constituting the crime, without unnecessary repetition ” (Code Crim. Pro. § 275), and it is of no moment if the name of the crime be incorrectly stated in the accusatory ■clause of the indictment if the specific allegations of the fact are sufficient, for the latter in such case control the character of the crimes presented by the indictment. People v. Sullivan, 4 N. Y. Cr. Rep. 193. It is acts charged which constitute the crime. People v. Seeley, 105 App. Div. 149; People v. Perckens, 153 N. Y. 576. These cases are cited with approval in People v. Miller, 143 App. Div. 251; affd., 202 N. Y. 618, on the opinion below.
The defendants are charged with manslaughter and the facts alleged constitute manslaughter. The variance in degree cannot surprise them. Section 444 of the Code of Criminal Procedure provides that upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto.
The indictments grew out of an accident, the collapse of the American Theatre, so called, on the 29th day of November, 1921. This building fell while in course of erection resulting in the death of at least two persons. On the 17th day of January, 1922, and before the indictments were found the former district attorney started the conduct of a public hearing before
At that hearing interested persons were allowed to testify only upon waiving immunity. Counsel was permitted only by courtesy and was limited in cross-examination to his own client.
The magistrate further said “ as this inquiry has been of a public nature, it is the privilege and right of the district attorney to present the facts of this case to the grand jury without further intervening magisterial action if he so desires.” This was done by the district attorney. On the morning of March 18, 1922, the defendants were arraigned to plead to these indictments found within two days. The learned district attorney remarks in his brief that there was unseemly haste in the preparation of these indictments. This could but lead to disaster. The John Doe proceedings took from start to finish about two months, the presentation of the case to the grand jury but two days. The stenographer who took the testimony in the John Doe proceeding before the chief magistrate was called before the grand jury, and after testifying that he had taken down in shorthand and transcribed that public testimony before the chief magistrate and having identified the book wherein it was written, the grand jury was allowed to hear the testimony thus previously given in public, in lieu of having the witnesses called before it. The witnesses whose testimony was thus repeated to the grand jury by the stenographer who had taken it down and then used against the defendant Moskowitz were James Kavanaugh, Charles J, Plankens and James M. Finlay, and against the defendant Joseph Gaydica were James Kavanaugh, Charles J. Plankens, James M. Finlay and Sylvester Rosenthal, and against James M. Finlay were James Kavanaugh, Charles J. Plankens and
There had been no cross-examination of these men on the public hearing as it was not permitted. It must be borne in mind also that this reading of testimony was as against all of the men indicted for there was but one presentation of the case to the grand jury and the reading of all of this testimony inte the grand jury minutes was had before consideration of the case of the grand jury and the finding of the indictments.
Similar testimony was offered by another stenographer (Mr. Herzog) as to what Mr. Kavanaugh had said in the office of’ the district attorney on Hovember 30, 1921, and the interview thus taken down was repeated to the grand jury, and used against the defendants.
A statement made by Sylvester Rosenthal, in the district attorney’s office, prior to the hearing before the grand jury was proved by the testimony of a stenographer who said that she had taken down that testimony and then proceeded to read it to the grand jury; Miss Malloy was similarly questioned, and she read what she had taken down at the time Rosenthal was questioned in the office of the district attorney, and all this is also part of the “ evidence ” against these defendants.
There are other statements made by persons not before the grand jury, which statements had been taken in the district attorney’s office, or elsewhere, in shorthand, on occasions prior to the grand jury meeting; these statements after having been testified to by the stenographer who took them, were read to the grand jury, and each was given an exhibit number, and each is part of the “ evidence ” on which these indictments rest.
Exhibit Ho. 13 is the statement of Joseph Gaydica; a second statement also appears to have been made in the district attorney’s office, in the presence of the district attorney, and one or two of his assistants; Mr. Thatcher appears also to have been present, and to have asked Gaydica questions and to have
Exhibit 17 is the Finlay statement made in the district attorney’s office prior to the hearing of the grand jury. Exhibit 18 is the statement of Kavanaugh, made in the district attorney’s office in the presence of various people, including Mr. Thatcher and a Mr. Bloom, a lawyer. Similar statements by others than the defendants made outside of the grand jury room, and repeated to the grand jury in the manner aforesaid were used by it against Moskowitz, Gaydica and Finlay and are shown as Exhibits 32, 33 and 34. This repeated testimony was of course hearsay as to these defendants beyond any question, and could no more be repeated to the grand jury by one who had heard it than any other indirect testimony not binding these defendants could be submitted to it as the basis for an indictment.
Section 255 of the Code of Criminal Procedure: “ Evidence receivable before the grand jury — In the investigation of a charge for the purpose of indictment, a grand jury can receive no other evidence than: (1) such as given by witnesses produced and sworn before them or furnished by legal documentary evidence; or (2) the deposition of a witness in the cases mentioned in third subdivision of section 8.”
The statements that were read to the grand jury were not depositions. On the face of them they were ex parte statements. People were called to the district attorney’s office and they were questioned, and what they said was taken steno-graphically. Even Hr. Thatcher, a building contractor employed by the district attorney, was present during parts of this examination and himself asked questions. Ho one was under oath, and the witnesses were not subjected to any cross-examination, and there was no opportunity for it. This made the testimony incompetent since section 8 requires that the deposition shall have been made when cross-examination was permitted, and only such a deposition is usable under section 255. Yet all of this matter was read to the grand jury.
In presenting the facts to the grand jury, the cases of all four men who were indicted were presented together. In other words, witnesses against Hoskowitz, the owner, Gaydica, who supplied the steel, Kavanaugh, who erected it, and Einlay, the steel inspector for the city, together with the statements of each of these individuals, were presented together and then the grand jury was permitted to find indictments against all. There was no distinction made between the various individuals and the various interests concerned.
Of course the statements of a defendant may be presented to the grand jury as against him to prove admissions against interest, if any there be, but the statement of one made under the circumstances here narrated outside the grand jury room is not competent to prove anything against another. Such statements are not competent evidence against any person other than the person making them, and then again the statements themselves are competent only to the extent of admissions against interest legally and competently made.
The other statements are mere hearsay and must of necessity be subtracted from the proof that the grand jury considered.
An indictment is aided by' the presumption that it is based upon legal and sufficient evidence (People v. Glen, supra), but the presumption must give way to the fact when it is not so based and an indictment must be quashed on the ground that incompetent, immaterial or illegal evidence was given before the grand jury where there is not enough competent evidence to suppoit it and even if there be if it clearly appear that the illegal evidence improperly influenced the minds of' the grand jury. People v. Farrell, 20 Misc. Rep. 213; People v. Osborne, 158 N. Y. Supp. 572 ; People v. Winant, 24 Misc. Rep. 361; People v. Hayes, 28 id. 93. The grand jury min-utes abound in incompetent and immaterial evidence other than hereinbefore stated, and it will serve the purpose to indicate but a few instances.
An iron and steel worker, not an expert, who had worked on the job testified that in most jobs there were anchor bolts and holes for anchor bolts; that a truss buckled due to the fault
Another witness testified as to the defendant Moskowitz: “ Q. Was he the superintendent of erection on the job? A. As far as I know he was.” Still another testified: “ I didn’t know who he was then, I thought he was the engineer then, but afterwards I found out that he was one of the owners of the building. He was always giving orders what was to be done on the job, that’s why I thought he was an engineer. Q. Did he give any orders to you that you remember ? A. Not to me but to Kavanaugh and the other bosses he would give them.Q. Kavanaugh was your boss? A. Yes, sir. Q. Do you remember anything he told Kavanaugh to do at any time ? A. Not that I can remember. Q. You mean he gave orders to Kavanaugh but you don’t remember just what they were is that what you mean ? A. Yes, sir.”
A builder testified that he usually had a superintendent on jobs as large as the American Theatre and that the usual duties of the superintendent were to watch the progress of the work of the men immediately under his own charge as well as to watch the other members in the performance of their work; to see that the lines are properly followed and that levels are kept, to see that there is a co-ordination between the different
There seems to have arisen a discussion between the witness engineer and a grand juryman as to what would be a better proposition, assuming that a man found his foundation a half inch lower than the level he should come to. This, of course, was entirely beyond the inquiry, as the exercise of judgment, either one way or the other, should not have been the basis for an indictment for manslaughter even as against one who exercised the judgment, and certainly since the defendant Gaydiea did not have even the opportunity of passing upon the question as to the wedging of the column or the grouting thereof, the discussion could have no competency or relevancy as to him.
The superintendent of buildings gave testimony with reference to the duties of the inspector, Finlay, and his superiors and of the customs of the building department generally. His testimony resolved itself into a discussion as to whether the system in operation in the building department was a proper one or not. His testimony had nothing to do with the defendants Gaydiea and Moskowitz, and was clearly illegal and incompetent as to them. He testified to nothing which Moskowitz or Gaydiea had done or omitted to do. He was permitted, however, to give very damaging illegal testimony, that he was informed that the iron supports had temporary guides to brace the master truss and that he thought that was a great error. He was not qualified as an expert and he did not testify in this respect to anything he saw but to his conclusions based upon what some one told him and even the name of the some one was not disclosed. He was also permitted to tell about his
The testimony of the witness Thatcher consisted entirely of conclusions and opinions of the witness as to the reason for the collapse and was incompetent and illegal. He was called as an expert. The circumstances under which expert testimony is admissible have long been settled in this State. The leading case upon the subject is the case of Dougherty v. Milliken, 163 N. Y. 527. In that case, which has been followed by a long line of cases supporting it, the court laid down the following rules with respect to expert testimony and its admissibility at pages 533 and 534: “It may be broadly stated as a general proposition that there are two classes of eases in which expert testimony is admissible. To the one class belong these cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If, in such cases, the jury with all the facts before them can form a conclusion thereon, it is their sole province-to do so. In the other class wé find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. The distinction between these two kinds of testimony is apparent. In the one instance the facts are to be stated by the experts and the conclusion is to be drawn by the jury; in the other, the expert states the facts and gives his conclusion in the form of an opinion which may be accepted or rejected by the jury.
“ The next step in the logical development of this inquiry is to ascertain to which of these two classes the case at bar belongs.. If the knowledge of the experts consists in descriptive facts
This case has been cited with approval to date, and as recently as People v. Polstein, 184 App. Div. 260, 262; affd., in the Court of Appeals, Judge Page, reading the opinion in the Appellate Division, says: “ Experts were allowed to tes
“ All of the facts that were necessary to allow an inference to be drawn as to what caused the collapse were placed before the jury. The question that the defendant sought to have answered was what in the opinion of the expert caused the ■collapse.
“ With all the evidence before the jury they were entirely competent to draw this inference for themselves, and the mere expression of the opinion of the experts would not have aided them.
“ In my opinion this case comes within the first rule as to ■expert testimony laid down by Judge Werner in Dougherty v. Milliken (163 N. Y. 527, 533) where the conclusion that could be drawn by the jury depends upon the existence of facts which are not of common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject, in which case experts give the facts to the jury while the jury must draw the conclusion. This rule was applied in Nelson v. Young (91 App. Div. 457, 461) in which a building in the course of reconstruction collapsed, whereby plaintiff’s intestate was killed. An official who had inspected the building after testifying to the facts as he found them was asked, ‘ What was your conclusion ? ’ The objection was sustained and the appellate court upheld the ruling.”
Resort to expert testimony was both prudent and necessary. Without it there is nothing in the grand jury minutes to prove any cause for the collapse of the building, but the expert testimony must be as to facts which he should have described and detailed to the jury. With these facts before them the jury would be entirely competent to draw their own conclusions. The testimony of this witness, an expert of acknowledged standing, is made up of his conclusions, discloses no detail of
These indictments charge failure to comply with the laws of the State of New York, the provisions of the Building Code of the city of New York and the ordinances of the city of New York. No law of the State of New York, no provision of the Building Code of the city of New York, no ordinance of the city of New York is disclosed by the minutes as brought to the attention of the grand jury. Bills of particulars of the sections of the Building Code or other statutes or ordinances alleged to have been violated and stating also the particular acts of the defendants alleged to have been contrary to the law, and acts alleged to have been committed by them which caused or contributed to the deaths of the persons mentioned in said indictments were heretofore ordered by this court, but the district attorney has failed to comply and refuses to comply therewith. That in itself should dispose of these indictments. The defendants are entitled to be advised of the crimes with which they are charged and by a plain and concise statement of the acts constituting the crime. The indictments do not contain such a plain and concise statement and do not set forth facts constituting a crime in that they charge violations of the laws of the State of New York, the Building Code of the city of New York and the ordinances of the city of New York, one or many crimes we cannot tell. Moskowitz is the owner of the property, Gaydica is the iron contractor and Finlay the building inspector. Obviously the duties or obligations cast upon these defendants by statute or even under the common law in respect of the erection of the building, design, plan, workmanship, materials, labor, supervision, observation of plan, would
In the absence of the bill of particulars the indictments are insufficient.
The learned district attorney promptly, in the public interest, with commendable zeal and conspicuous ability, with diligence and painstaking effort inquired into the cause of the collapse of the building, examined witnesses and conducted a public hearing before a magistrate over a period of two months. The indictment, however, was found with unseemly haste ■ within two days and without the careful deliberation attendant ■ upon the conduct of the John Doe proceeding and to this,, to., some extent, at least, seems due the condition of the grand jury evidence hereinbefore referred to and commented upon.
Without this incompetent testimony there is not sufficient competent and legal evidence to sustain the indictment, and the indictments must, therefore, be dismissed.
In People v. Glen, 173 N. Y. 395, 400, the court said: “ But our courts have also always asserted and exercised the power to set aside indictments whenever it has been made to appear that they have been found without evidence, or upon, illegal and incompetent testimony (citing cases). This power, is based upon the inherent right and duty of the courts to ■ protect the citizen in his constitutional prerogatives and to prevent oppression or persecution. It is a power which the legis- ■. lature can neither curtail nor abolish, and, to the extent that legislative enactments are designed to effect either of these ends, they are unconstitutional.”
Counsel ask, however, “ for some expression from the court which may probably save future district attorneys from indulging in useless prosecutions, save part of the community from being stirred up or inflamed when there is no just cause for it, save reputable citizens from the shame incident to an indictment, save their families from .the worry and heartache, yes, and save the family of the unfortunate deceased person from the hope of revenge which is the natural human instinct when harm comes to a dear one, and possibly save all from making capital out of the misfortune of others.”
To this request considering only the record before me in this criminal proceeding as an entirety, competent and incompetent evidence alike, I may, to some extent, accede although my consideration and conclusions have no legal controlling or binding effect upon any of those above mentioned.
The district attorney now urges that the first count of the indictments is predicated upon the theory that each of the defendants committed and maintained a nuisance which is made by section 1532 of the Penal Law a misdemeanor, and that while engaged in committing this misdemeanor, affecting the person of the person killed and as the result thereof and through their act, procurement or omission, the said person was so killed. There were separate indictments and each defendant was individually so charged.
A public nuisance is defined by section 1530 of the Penal
This is a codification of the common law. Nuisance has been further defined by the courts. In People v. Harris, 74 Misc. Rep. 353 (The Triangle Fire Case), the defendants were indicted for manslaughter in the first degree because they were guilty of maintaining a nuisance under section 1530 of the Penal Law in that they kept the doors of their factory locked, bolted and fastened during working hours, which, in itself, was also a violation of section 80 of the Labor Laiv. Demurrers were disallowed, the court saying: “ If in that way the defendants rendered a considerable number of persons insecure in life, they maintained a public nuisance according to the terms of section 1530, which provides that a public nuisance consists in unlawfully doing an act which in any way renders a considerable number of persons insecure in life. The Penal Law provides that one who maintains a public nuisance is guilty of a misdemeanor. The allegations of this count charge that the defendants, while engaged in the commission of a misdemeanor, feloniously caused the death of decedent.” (Words italicized by the court.) People v. Harris, 74 Misc. Rep. 362.
“ The purpose of the statute is to prevent the recurrence of the nuisance, not to punish, although punishment must he prescribed in order to make the statute effective. Then it is neither essential nor logical to consider the intent of the maker of the nuisance.” People v. High Ground Dairy Co., 166 App. Div. 81, 82.
It is well-settled law that in the creation or maintenance of a nuisance, which is a misdemeanor, all persons committing or participating in the crime may be held as principals. In such
One of the leading cases in the State in connection with nuisance is that of Melker v. City of New York, 190 N. Y. 481, 487, in which the plaintiff sued for personal injuries sustained in connection with the explosion of fireworks in Madison Square: “ For time out of mind the term Inuisance ’ has been regarded as incapable of definition so as to fit all eases, because the controlling facts are seldom alike, and each case stands on its own footing. We are not aided by the classification into public and private nuisance, because the difference between them does not depend on the nature of the thing done, hut on the fact that one affects the public at large and the other a limited number only. The primary meaning of the word suggested by its derivation, is that which injures, or, in the quaint phrase of ancient times, ‘ that which worketh hurt.’ The injury may be to person or property, to health, comfort, safety or morality. * * *
“ Locality, surroundings, methods, the degree of danger, and the custom of the country are the important factors. The firing of a cannon loaded with grape shot, if in a city or village, would be a nuisance as a matter of law; if in a remote place far from the habitations of men, it might be a nuisance as a matter of fact, and if against the face of a precipice, no nuisance at all.”
At page 490 of this opinion it is said: “A nuisance does not rest upon the degree of care used, for that presents a question of negligence, but on the degree of danger existing even with the best of care. Degree implies gradation and.gradation
In order to maixxtain the theory that the building in qxxestion constituted a nxxisance, it must appear that the defendants intended it shoxxld be construed in a manner which proved to be improper, that they knew or ought to have known that sxxch manner of construction was improper and that sxxch improper construction caused the ixxjxxries complained of.
Hot one of the three facts mentioxxed above has been established by the grand jury minutes.
In the case of Herman v. City of Buffalo, 214 N. Y. 316, the court said at pages 320 and 321: “ The creation or participation in the creation of the dangerous condition must have been with the consciousness and understanding on the part of the appellant that it was creating it; or it must have been obvioxxs and almost certain to a reasonably piuxdent maxi, while the acts were being performed on the part of the appellant, that those acts would create or help to create it. The conditioxi must have been a purpose or object of the appellant; it mxxst have intended to effect it; or its acts have been so reckless and unwarranted that that intention must be conclusively implied. This is not declaring that it must have ixitended the danger or the catastrophe. It must have intended the condition, bxxt, having that intention, may have thought it was not dangerous or been thoughtless in regard to it. It must have violated the absolute duty of refraining from the participating acts, not merely the relative duty of exercising reasonable care, foresight and prudence in their performance. The wrongfulness must have been in the acts themselves rather than in the failure to use the requisite degree of care in doing them, and therein lies the distinction, under the facts of this case, between nui
I might further refer to the concurring opinion of Bartlett, Ch. J., at page 325 of the case above cited: “ Where the charge of maintaining a dangerous nuisance is based upon the fall of an improperly constructed building, it must appear, in order to render the owner thereof liable as such (1) that he intended it should be constructed in the manner that proved to be improper; (2) that he knew or ought to have known that such manner of construction was improper; and (3) that such improper construction caused the injury complained of.
“ Where injury is due to improper construction inherent in the plan, a municipal corporation owning the building may nevertheless avoid liability for its fall if it appear that the plan was prepared for it by a competent independent architect, upon whose judgment and advice the municipal officers relied, unless the plan was so obviously bad as to suggest insecurity to an ordinarily and reasonably prudent owner.”
Reviewing the whole of the grand jury minutes, competent and incompetent evidence alike, the building plans were prepared by a competent architect and were approved by the building department September 15, 1921. The first set of steel plans were prepared by a competent engineer and the second or redesigned plans were also prepared by competent engineers. These plans were filed as an amendment September 19, 1921. The original plan had been approved and the examiner took up-his work on the amended plan and on October 7, 1921, made some suggestions of amendment, eight in number, and on October 25, 1921, suggested thirteen more amendments. These were all taken up with the department and the first eight either agreed upon or waived on October 14, 1921, while the second thirteen which included so many of the first eight as were not disposed of were agreed upon or waived on October 28, 1921. As the plan examiner says: “ They were approved on November 2, 1921, with a few amendments.”
When the plans were filed on September 19, 1921, the steel was ordered from the American Bridge Company and was delivered on the job before any of the plan amendments were suggested or any agreed upon and the amendments were suggested after the greater part of the steel work was up and completed but some of the steel work provided in the original pían was not up for the reason that one of the brick walls was not
These plans, structural and steel alike, were checked by the architect who was hired to supervise and consult, but not to superintend.
There is no testimony that the building as planned was dangerous or unsafe; in fact the expert called for the people says that the strength of the steel structure was sufficient to carry the load which it was expected to carry and the roof.
The defendant Moskowitz hired a competent architect to
¡Negligence is defined as: “A negligent offense is an offense which ensues from a defective discharge of a duty, which defect could have been avoided by the exercise, by the offender, of that care which is usual, under similar circumstances, with prudent persons of the same class.” Whart. Crim. Law (11th ed.), § 162.
The Court of Appeals in an early case (Rosenplaenter v. Roessle, 53 N. Y. 262) defined it, at page 268, as follows: “ To neglect means to omit, as to neglect business, or payment, or duty, or work, and is generally used in this sense. It does not generally imply carelessness or imprudence, but simply an omission to do or perform some work, duty or act.”
It is contended for the defense that since the adoption of the Penal Law, section 22 (Penal Code), no act' or omission is a
There can be no doubt as to the general rule of proximate cause. It is thus stated in 29 Cyc. 488: “ A. In general. Although a defendant may be negligent in the performance of some duty owed to the person injured no liability attaches unless such negligent act was the proximate cause of the injury. The same rules are to be applied in determining the question whether an act is the proximate cause, whether such act is in violation of a statute or of some duty under general principles of law.”
The general rule is that to render a person liable his negligence need not be the sole cause of the injury. It is sufficient that his negligence, concurring with one or more efficient causes, other than the plaintiff’s own fault, is the proximate cause of the injury. So that where two causes combine to produce injuries, a person is not relieved from liability because he is
The testimony of the expert for the People is that something happened above. That something was the proximate cause of this accident. Nobody seems to know what that something was and the photographs add confusion to confusion for they show much buckling steel, breaks in steel, broken and fallen brick walls, loose mortar, broken concrete; in fact a total and complete collapse.
Quoting the language of Judge Earl in Hun v. Cary, 82 N. Y. 65, 71: “ It is impossible to give the measure of culpable negligence for all cases, as the degree of care required depends upon the subjects to which it is to be applied. (First Natl. Bank v. Ocean Natl. Bank, 60 N. Y. 278.) What would be slight neglect in the care of a quantity of .iron might be gross neglect in the care of a jewel. What would be slight neglect in the care exercised in the affairs of a turnpike corporation, or even a manufacturing corporation, might be gross neglect in the care exercised in the management of a savings bank intrusted with the savings of a multitude of poor people, depending for its life upon credit and liable to be wrecked by the breath of suspicion.”
The General Term in the first department in 1886, Mr. Justice Daniels writing for the court, defined “ culpable negligence ” as follows: “ What the law designed to render criminal was such a careless act or omission on the part of accused as will endanger the personal safety or life of another, and which, by the exercise of reasonable attention and exertion would be avoided. As much as that is a duty which every person owes to another and it was upon the failure to observe the requirements of this rule that his liability to conviction by the jury was placed by the court.”
The charge to the jury in People v. Buddensieck, 4 N. Y. Cr. Rep. 230, 266, and approved in the Court of Appeals (103 N. Y. 487) was: “ And that: ‘ The jury must not only find
“ And ‘ If the evidence leaves the jury in doubt as to whether such a degree of negligence exists as the statute thus contemplates, they must find its presence not proven, and acquit the defendant; that is, if they entertain a fair and reasonable doubt as to the establishment of such a degree of negligence as the Code contemplates by use of the word “ culpable.” ’
“ And ' the jury must find beyond a reasonable doubt that the defendant by his procurement or culpable act, through unlawful negligence or reckless means, occasioned the death of Lewis Walters, otherwise they must render a verdict of not guilty.’
“ And ‘ if the defendant did exercise such ordinary and usual care and caution, as men generally in the performance of their business affairs are accustomed to exercise the jury must find that the killing charged in the indictment was misadventure and not crime, and the defendant must be acquitted.’ ”
They were further directed that “ if they were of the opinion that the defendant, though practically unskilled as a builder, provided what he believed to be proper materials for the erection of such building; that his contracts were with persons whom he regarded as competent to perform the labor required of them; that he expended his moneys and devoted his time in and about such erection with the honest purpose and intention that such buildings, when completed, should be safe and suitable for the uses for which they were intended; then and in such case the jury must find that the falling of such building was misadventure, the act charged not a crime, and the defendant must be acquitted.”
Judge Cullen for the Court of Appeals in People v. Rosenheimer, 209 N. Y. 115, 123, says: “ A distance separates the
The culpable negligence theory is to be found in the second count of the indictments against Moskowitz and Gaydica where, under paragraph C, are the fourteen items as follows:
He omitted and neglected:
1. To anchor the trusses to the walls, and to cause the same to be anchored.
2. To install cross frame bracing between the trusses, and to cause the same to be installed.
3. To install sway braces in all bays between trusses, and to cause the same to be installed.
4. To install struts connecting the bottom of a certain longitudinal truss with the north wall of said building, and to cause the same to be installed.
5. To exercise proper care and precaution in the erection of a certain steel column in the northwest corner of said building supporting the westerly end of said longitudinal truss, and to cause the same to be so exercised.
6. To provide and install proper materials to support said column at its footing, and to cause the same to be provided and installed.
Y. To erect said column properly or to plumb same, and to cause the same to be properly erected and plumbed.
8. To install the proper number and size of bolts, bearings, connections and other materials to be used in the erection of said iron and steel, and to cause the same to be installed.
9. He erected the said column in the northwest corner of
10. He erected the column in the northwest corner of said building in a reckless and negligent manner, and caused the same to be so erected.
11. He omitted and neglected to properly secure said column both at its base and at its top, and to cause the .same to be so properly secured.
12. He erected the said iron and steel and practically completed the same and caused the said iron and steel to be so erected and practically completed before the plans for same were approved by the superintendent of buildings and proper permit issued therefor; in violation of the ordinances of the city of Hew York.
13. He erected steel trusses that did not comply with the ordinances of the city of Hew York in weight and structure to support the load which said trusses were intended and required to bear, and caused the same to be so erected.
14. He omitted and neglected to install one-inch plates on the top of the pilasters supporting the ends of the trusses, and to cause the same to be installed.
While as to Finlay it is charged as to each of these specifications that he neglected to require or neglected to prevent, as the case may be.
Paragraph “ D ” then charges, as a conclusion, but without stating the connection, that in consequence of the aforesaid acts and omissions the building was designed, manufactured and erected by the defendant and was suffered and permitted to be designed in such a careless manner, in consequence whereof the building fell, and killed, etc.
It may be well to call attention to certain sections of the Building Code. Article 1, section 1, subdivision 3, provides: “ This chapter is hereby declared to be remedial and shall be
Article 1, section 3, subdivision 1, provides: “ Before the construction or alteration of any building * * * is commenced, the owner or lessee * * * shall submit to the Superintendent of Buildings a detailed statement in triplicate of the specifications * * * and such plans and structural detailed drawings of the proposed work as the Superintendent of Buildings may require * * *.”
Pausing here, instead of returning to this section, the only thing absolutely required is a detailed statement in triplicate of the specifications. Only such plans and structural detailed drawings are required as the superintendent of buildings may desire.
Article 1, section 3, subdivision 5, provides for amendments.
Article 1, section 5, subdivision 1, is as follows:
“ Certificate of Occupancy. New Buildings. No building hereafter erected shall be occupied or used in whole or in part for any purpose whatever unless a certificate of occupancy shall have been issued by the Superintendent of Buildings certifying that such building conforms substantially to the approved plans and specifications and the requirements of this chapter applying to buildings of its class and kind.”
Article 3, section 53, is as follows:
“ Loads. Subdivision 1. Dead load. The term ‘ dead load ’ means the weight of walls, partitions, framing, floors, roofs and all permanent construction entering into any building.
“ Subdivision 2. Live load. The term ‘ live load ’ means all forms of loading other than the weight of the material entering into the construction of the building.”
These two subdivisions may well be read in connection with article 3, section 50, subdivision 2, which reads as follows:
“ Factors of safety. Where the unit stress of any material is not prescribed in this chapter the relation of allowable unit*82 stress to ultimate strength shall he as 1 to 4 for metal, as 1 to fl for timber, and as 1 to 10 for natural or artificial stones and brick or stone masonry. But wherever working stresses are prescribed in this chapter, the said working stresses shall be-used.”
At the time of the collapse, the trusses were not carrying anywhere near the dead load for which they had been designed inasmuch as there were no partitions or floors and the ceiling was but partly on them. Moreover, the live load refers primarily to snow and wind and there was no snow resting upon the roof so that the stress upon the trusses was very much less than that which they were designed to carry, even disregarding the factor of safety provision.
Article 15, section 305, subdivision 2, is as follows:
“ Lateral bracing. All trusses shall he held rigidly in position by efficient systems of lateral or sway bracing.”
Article 15, section 309, is as follows:
“ Templates. When any lintel, beam, girder or truss is supported at either end by a wall or pier, it shall be properly anchored thereto and shall rest upon the template or shoe of cast iron, steel or stone of such design and dimensions as to safely distribute its load on the masonry, except that when beams not exceeding six inches in depth are placed not more than thirty inches on centres, no templates shall be required.”
The templates provided for the piers and upon which the trusses rested were two in number, one upon the other and one a half inch thick and the other five-eighths of an inch in thickness. No one has ever attempted to testify that these were not amply sufficient. Originally, one-half inch templates were provided and later upon the request of the examiner the thickness was increased to more than one inch, although he only required one inch templates.
Moreover, with respect to the anchorage, the only testimony in the grand jury minutes is that given by Sullivan on page
Article 32, section 654, subdivision 1, provides for penalties and provides for a penalty, in case of any violation of the chapter, in the sum of not less than ten dollars nor more than fifty dollars. Subdivision 3 provides that any person served with a notice to remove a violation or to comply with any requirement of the chapter, who fails to comply with said notice within ten days shall pay a penalty of not less than fifty dollars nor more than two hundred and fifty dollars. The balance of this section provides for the jurisdiction of penalty actions, their discontinuance upon the removal of the violation and the power of the superintendent of buildings to remit the penalty.
Article 32,'section 655, is as follows:
“ When a violation is a misdemeanor. Any person who shall receive and fail to comply with any written peremptory order of the Superintendent of Buildings issued only when an immediate compliance with such order is essential to the public peace or safety, within the time specified in such order shall be guilty of a misdemeanor.”
No one would have the right to design or erect a truss which was not capable of sustaining the requisite stress or strain, even if approved by the examiner. No one would have the right to erect an unsafe building even under the approval of the superintendent of buildings. No one would controvert this. Conversely, it seems equally clear that a request or objection by a plan examiner has not any virtue in itself. A request or objection is not good merely because made by a plan examiner nor is that which is objected to made unsafe or improper' because of the objection. ' Nowhere in the law is this power given to a plan examiner who admittedly on his own statement is not even an engineer. Nor, indeed, could this extraordinary, unlimited and unqualified power be given by statute or ordinance, even if attempted.
The roof rested upon the purlins which in turn rested on the tops of the trusses. The ceiling hung from the bottom chords of the trusses. The plans show a complete passageway around the trusses on all four sides of the building and in addition a passageway down the center. The parts which it is claimed were omitted between the trusses were center cross-framing and sway braces in all bays instead of in alternate bays. The center cross-framing was run from the peak of one truss to the tension tie of the next truss and vice versa,. When the term “ tension tie ” is used, it is to be remembered that roof trusses are constructed of two trusses joined at the peak. The tension tie mentioned connects the bottom chords of the two halves. This member is in tension as opposed to the compression in which the top chords of the trusses are. The tension member keeps the two halves from pulling apart and carries no weight, and in addition is the means of sustaining the furring and metal lathing for the plaster, which forms the ceiling of the auditorium, for without these tie pieces there would be nothing to hang the ceiling to.
That the absence of the center cross-framing between the peaks of the trusses and these light tension ties could cause the collapse seems inconceivable. There were some twenty-one
Article 15, section 309, of the Building Code provides for proper anchorage and not for any particular kind of anchorage.. Beyond this, however, is the testimony of Sullivan in the grand jury room to the effect that the trusses were anchored, evidently - by the bricking in, and the further fact that there is not a line shown on any plan to provide for anchors. Plans are drawn by means of lines and circles and anchor bolts or rods require ■ lines. To say that because the trusses'at their extremities had; holes in them, meant that those holes were there for anchor-rods has about the same weight as saying that because the
On the request or objection sheet of the examiner there is a check against every request or objection. It was conceded upon the argument that that meant that every one of the requests or objections had been agreed upon or waived. Since there was no writing on the roof framing plan in the upper right-hand corner with reference to anchorage, although there was with reference to some of the requests or objections, it must be assumed that the examiner was satisfied with the anchorage as provided, just as he was with reference to everything else except three details written in, or else that he had waived it.
With respect to the channel on the Spencer street or east end of the building, that was to carry hollow tile. As the hollow tile had not been put in place, the absence of that channel, of course, had nothing to do with the collapse.
With reference to the request of the examiner, “Brace bottom chord of truss 1 to pier * * * in lieu of knee brae
Referring again to the piers on the north wall at the point where it collapsed, it should be noted that not only were these piers shorter than any other piers in the structure, but that they were less thick than any other piers. The north wall was a twelve-inch wall. The other piers in the building including the width of the wall were twenty-eight inches thick. The width of the three piers on the north wall at the place where it collapsed including the width of the wall.was but twenty inches thick. From the longitudinal truss to the north wall there ran three rafters or beams which rested in it. When this is remembered, the fact that the single brace from the longitudinal truss to the north wall or to one of the piers in the north wall had not been installed loses very much of its weight. Thus it appears that some of the requests of the examiner were unreasonable and improper; that the time within which to comply had not expired; that the examiner had not arbitrary power; that the members suggested could have still been put in; that the job was not finished; that no certificate of occupancy had been asked; that the absence of parts not yet put in did not cause the collapse.
Reviewing the alleged acts of culpable negligence:
(1) Is not true; the trusses were properly anchored, as testified to by Sullivan;
(4) The suggestion of the examiner is in this respect ambiguous and uncertain, requiring explanation and pointing
(8) There is no proof at all to sustain this charge;
(12) Is only partly true; the plans had been partially approved and work permitted but they had not been finally approved in that all of the suggestions of the plan examiner had not been either waived or agreed upon;
(13) There is no proof at all to sustain this at any point;
(14) The proof is that one and one-eighth inch plates were installed and accepted.
All of the other of the fourteen particular charges had to do with the erection of a certain column except (2) as to the cross-framing and (3) as to the sway braces which could have been put in later and the absence of which, as Mr. Thatcher, the People’s expert, said, did not cause the collapse. He says that after the building started to go the absence of these members added to the extent of the collapse but there is no statement of fact and nothing to show that their presence would even have lessened in some degree the extent of the collapse which, however, is not the question here, for the absence of these members at the time was, as he testifies, not the cause of the collapse.
Much is said about the column, but the photograph of the column offered by the district attorney is said by both Kavanaugh and the People’s expert to show the condition of the column at the base. It shows it well blocked, level and plumb. THe original plans show this column. They were approved by the building department. A concrete base four by four feet was built by the bricklayers or their subcontractors. They built it too low so that when the column was lifted to it there was a gap. The steel erectors, Pluckham & Kavanaugh, their man Sullivan in charge, lifted the column with the der
It appears that this column was out of plumb and that it was plumbed by striking with a maul at the bottom and that when Kavanaugh, who did this plumbing, left it it was absolutely level and well blocked. The column had moved ofi center in plumbing leaving a full space of four inches and this space was filled in with one-half inch plates extending more than the width of the base of the column so that these plates projected on both sides and also some three and one-half inches in front, they being about seven inches deep. Under these plates four steel wedges were driven in. Finlay, the building department inspector, one of the defendants, says that he directed this to be done and that it be grouted also. Grouting is the distribution of a cement mixture about the base of the column, usually about one-half inch in thickness.
Gaydica noticed this column out of plumb and called the attention of the erectors to it and they (the erectors) went back and plumbed it (Gaydica not being present) by striking with a maul before the other plates and wedges were put under it. It was fastened at the top and not at the bottom and bore no weight at the time. Accounting for it being out of plumb the erectors say that the practice is to set the column first and later plumb it. Their theory is that one of the many five-ton trucks running in and out of the job may have struck the column and thrown it out of plumb, but that had been corrected and the column blocked as shown in the photograph with a complete sound and level base before the accident.
Were bolting to have been done the bolts would have been inserted in the cement base which was the work of the foundation man who built the pier short. The pier was short of the proper level and the difference was made up with steel plates, which is not unusual. The People’s expert, the steel erectors, the steel contractor, the steel workers, all say that that is usually done and that such a base is proper and safe. Sullivan, the foreman of the iron workers, testifies that when the plate was under the pier it was on a sound footing. The People’s expert testified that the trusses figured all right; that there was enough steel, provided the column was all right. His theory of the accident is that something happened up above, a budding as he terms it, but no cause for the buckling or yielding, whatever he may mean, is given. There is an entire absence of proof of proximate cause or any cause. All that appears is that an accident happened from a cause or causes unknown. Even if there were a proximate cause and negligence and culpable negligence on the part of some one, it must be shown to be legal negligence of Moskowitz to sustain an indictment against him, and similarly as to Gaydica or Finlay to sustain an indictment against either of them.
The defendant Moskowitz was the owner with one Rosenthal of the land whereon the building was in course of erection.
“ Q. Mr. Moskowitz, you had a sign put on the shanty, Eosenthal & Moskowitz, Builders and Owners? Is that correct? A. Yes, sir. Q. So you and your partner were the builders there? A. However you would call us, we were the owners. Q. You took the responsibility of letting out the contracts to the different contractors? A. Yes, sir.” Page 358 of the grand jury minutes.
The testimony shows Moskowitz on the job a great deal but it does not show him participating in or directing the building or doing anything that an owner who has contracted out all of
" Contract between Joseph Gaydica PaHy of the First PaH and Pluckham & Cavanaugh PaHies of the Second ParL
“ Party of the second part agrees to erect all Structural Steel Work according to plans and building department regulations for Theatre Building to be erected at Bedford & Park Avenues, Brooklyn, H. Y. for the sum of one thousand seven hundred and fifty ($1750.00) dollars.
“ Party of the second part agrees to hire none but union help fully protected by the Compensation laws and to supply all necessary tools and hoisting apparatus.
“ Party of the second part agrees to protect the party of first part against accidents to the public.
“ Party of the first part reserves the right to cancel this contract if parties of the second part fail to appear on the job ready for work three days after final notice.
“ Party of the first part agrees to make payments as the work progresses.”
He did not take any part in the construction of the steel edifice. Pluckham & Kavanaugh entered upon performance of the contract and did the construction work.
An owner subletting the entire work to independent subcontractors is not liable for the negligence of any of the latter, being answerable only for his personal affirmative negligence while actually participating in the work, and that rule applies also to a contractor subcontracting his work.
It is a well-recognized fact that building operations can be conducted safely and that they are not inherently dangerous. McCafferty v. S. D. & P. M. R. R. Co., (1874) 61 N. Y. 17.8; Parsan v. Johnson, (1913) 208 id. 337; Hyman v. Barrett, (1918), 224 id. 436; Von Lengerke v. City of New York, (1912) 150 App. Div. 98.
Thus in Von Lengerke v. City of New York, (1912) supra, Mr. Justice McLaughlin, in delivering the opinion of the court, said at the bottom of page 104 et seq.: “ Third as to the defendants Eidlitz. The finding of the jury that the damage sustained by the plaintiffs was due to their negligence is against the evidence, and for that reason the court properly dismissed the complaint as to them. There is absolutely no evidence that they, or their servants, were in any way negligent. They took no part in the excavating and never attempted to supervise or direct what was to be done in any way. They had a right to sublet the contract to a competent person, and the evidence shows that the subcontractor was such. Pilhington was an independent contractor, and they could not be made liable for his negligence. Plaintiff’s counsel recognizes this rule, but contends that the case comes within the exception, which is that liability cannot be avoided where the thing contracted to-
In Dorn v. Snare & Triest Co., (1909) 62 Misc. Rep. 269, the court held, quoting verbatim from the head note, as follows: “Where a corporation, which has contracted with a municipality to erect a bridge, enters into a subcontract for the iron and steel work, and an employee of the subcontractor, by negligently dropping a tool, injures one directly beneath him who sues the principal contractor and recovers judgment against it; and where upon the trial the court charges the jury that they must find for the plaintiff if they find that the workman' who dropped the tool was employed by the defendant, but for the defendant, if they find he was employed by the subcontractor, and withdraws from the jury any question as to the bona fides of the contract between the principal contractor and the subcontractor; and where the proof shows the workman was employed by the subcontractor, the judgment upon a verdict for the plaintiff must be reversed upon appeal, although there is evidence in the case from which the jury might have inferred that the contract was a mere cloak to shield the defendant from liability for n'egligence in such cases, if that question had been submitted to them.”
In McCafferty v. S. D. & P. M. R. R. Co., (1874) supra, Judge Earl, in delivering the opinion of the court, said at page 181: “ This is not a case where the defendant contracted for work to be done which would necessarily produce the injuries complained of. They were caused by the unskillful and negligent manner in which the blasts were conducted. The injuries were not occasioned in consequence of the omission of any duty
The reasoning underlying this rule of law is admirably discussed and set forth in the scholarly opinion of Chief Judge Andrews in the case of Engle v. Eureka Club, (1893) 137 N. Y. 100, wherein he says at page 103 et seq.: “ 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. Cen. & H. R. R. R. 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 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 in affairs frequently require persons exercising independent employments should be entrusted 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
At page 115, Judge Martin continues: “ There are certain exceptional cases where a person employing a contractor is liable which, briefly stated, are: Where the employer personally interferes with the work, and the acts performed by him occasion the injury; where the thing contracted to be done is unlawful; where -the acts performed create a public nuisance; and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency. Manifestly, this case falls within none of the exceptions to which we have referred. There was no interference by the defendant. The thing (this was a case of injuries caused by blasting rock in making an excavation) contracted to be done was .lawful. The work did not constitute a public nuisance, and there was no statute binding the defendant to efficiently perform it. In none of those exceptional cases does the question of negligence arise. There the action is based upon the wrongful act of the party, and may be maintained against the author or the person performing or continuing it. In the case at bar the work contracted for was lawful and necessary for the improvement and use of the defendant’s property. Consequently no liability can be based upon the illegality of the
Supervision, however vigilant, if confined to enforcing the terms of the contract or subcontract does not constitute participation such as would render the owner or contractor liable for the negligence of the contractor or subcontractor.
Becognizing the natural desire of any employer of an independent contractor to be sure that his contractor is actually fulfilling the terms of his agreement, the law permits him to inspect and supervise the work as it progresses without incurring liability for the negligence of the contractor, provided he refrains from becoming an actual participant in the work and merely confines himself to such general supervision as may be necessary to insure him full and proper performance of the duty of the contractor or subcontractor as the case may be. Pack v. Mayor, etc., of N. Y., (1853) 8 N. Y. 222; Burke v. Ireland, (1898) 26 App. Div. 487; Hawke v. Brown, (1898) 28 id. 37; Doremus v. Auerbach, (1919) 176 id. 512; Jaskoey v. Consolidated Cas Co., (1900) 33 Misc. Rep. 790; Wettje v. Silverman, (1907) 52 id. 567; Jacoby v. Browning, (1918) 105 id. 312.
In discussing such right of supervision, Mr. Justice Mullen, in Jacoby v. Browning, (1918) supra, says at page 313 : “ The defendant, who was the owner of the land upon which the hotel was erected, gave out contracts to different people for the doing of all the numerous items of work. His position thus was the same as the very common one of a general contractor who lets out all the work to subcontractors. He had architects and a superintendent, and the latter and he himself were shown to-have closely watched the construction. But their vigilant supervision was only such as they were entitled to exercise. It is settled law that the general contractor has the right of general supervision in so far as it is necessary to insure full and proper performance by the subcontractors, and that it is only when he goes beyond the limits of that right and commits
In Hawke v. Brown, (1898) 28 App. Div. 37, Mr. Justice Green, in delivering the opinion of the court, used the following language, at page 43: “ When a contractor takes entire control of the work, the employer not interfering, the employer —supposing there was no negligence in the selection of the contractor, and that the work contracted for was lawful — is not liable to third persons for injuries to such parties by the contractor’s negligence, or the negligence of his subordinates. But any interference, assumption of control or directions given by the owners of buildings, being erected for him by contractors, in work done in obedience to such directions. * * * In other words, the employer may make himself liable by interfering with the contractor and assuming control of the work, or some part of it, so that the relation of master and servant
The extent of such right of supervision is illustrated in the decision of Burke v. Ireland, (1898) 26 App. Div. 487, where it was held that the fact that a contract made by the owner with the principal contractor provided that the owner should have the right to inspect the materials and workmanship, modify the plans and vary the work, and that the work should be done under the direction of the owner’s architect, does not alter the owner’s position as regards his liability.
Such right of supervision is optional with the employer as he owes no duty of active vigilance to third parties where the work is in charge of an independent contractor.
As we have seen from. the discussion under the previous points, one who employs an independent contractor is liable for the negligence of the lattér only where he actually participates in the work that he has let out. Pitcher v. Lennon, (1896) 12 App. Div. 356. Necessarily, therefore, he is under no duty to use active vigilance to see that the independent contractors perform their work in accordance with the terms of their contract, and in a skillful and proper manner. Joyce v. Convent Ave. Construction Co., (1913) 155 App.. Div. 586; Hawke v. Brown, (1898) 28 id. 37.
In Joyce v. Convent Ave. Construction Co., supra, it was held that an owner of premises who contracts for the erection of a Building thereon owes no duty of active vigilance to protect the employees of one contractor from those of another. This rule is merely the logical corollary to the one which only imposes liability upon the employer if he participates personally in the conduct of the work.
To hold an employer liable for the negligent selection of an
In reading the authorities which we have been previously discussing one frequently meets the phrase that where the employer retains a “ competent independent contractor ” he is not liable. Naturally, the question arises as to whether or not he could he charged with liability for selecting one who was incompetent. While an extensive search of the reported cases does not disclose a single case in which an employer was held liable solely upon the ground of a faulty selection, Mr. Justice Lehman, in Mehler v. Fisch, (1910) 65 Misc. Rep. 549, at page 550, discloses the evidence of incompetency which was introduced to hold the employer liable and held it to he insufficient. He said: “ Nor can the judgment be sustained upon the theory that the owner did not exercise due care in engaging competent contractors. Even if the owner is under a duty, the plaintiff has not shown any failure to perform it. The work done here was not hazardous nor requiring great skill. The contractors, while not long in this country and just beginning to work for themselves, testified that they have had long experience as journeymen in work of this kind. Absolutely the only evidence of incompetency is the fall of the scaffold.”
From the language of the court in that case it is evident that even if there be a duty on the part of the employer to select a competent independent contractor, a violation thereof is not shown by proving that the party selected by him has not been in business for any great length of time and that a catastrophe has resulted in the course of the work that he has undertaken.
Even in a civil case mere proof of a collapse does not make out a prima facie case against a particular contractor, under the doctrine of res ipsa loquitur where the work of construction has been done, or is being done by more than one contractor.
Conceding for the sake of argument that the doctrine of res
In the last cited case the owner of the property in question was erecting a building and had let out the work of construction to nineteen independent contractors. During the course of the progress of the work an employee of one of the contractors was hit by a brick which fell from the upper part of the building. There was no proof as to who started the brick in motion but a recovery was permitted in the court below against the contractor who had charge of the carpentry work and the one who had charge of the masonry work. In delivering the opinion of the appellate court which held the judgment of the lower court should be reversed, Judge O’Brien very ably disposed of the argument that a prima facie case was made out under the doctrine of res ipsa loquitur, using the following language • at page 33 et seq.: “ We agree with the court below that this is a case where the maxim res ipsa loquitur applies. There is a presumption that the plaintiff’s injury was the result of negligence (Mullen v. St. John, 57 N. Y. 567; Hogan v. Mann. R. Co., 149 N. Y. 23; Kearney v. London, etc., Ry. Co., L. R. [5 Q. B.] 411; Volkmar v. Manhattan R. Co., 134 N. Y. 418). But that presumption did not complete the proof which it was incumbent upon the plaintiff to make before the case could be submitted to the jury. In a case like this, where the building-in process of construction is in charge of numerous contractors and their workmen, each independent of the other, and none of them subject to the control or direction of the other, some proof must be given to enable the jury to point out or identify the author of the wrong-. There is no principle that I am aware of that would make all of the contractors, or all of the
“ Cases must occasionally happen where the person really responsible for a personal injury cannot be identified or pointed out by proof, as in this case, and then it is far better and more consistent with reason and law that the injury should go without redress than that innocent persons should be held reponsible upon some strained construction of the law developed for the occasion. The idea suggested in this case that all or any of the nineteen contractors may be held since the plaintiff is unable by proof to identify the real author of the wrong is born of necessity, but embodies the principle so far reaching and dan- . gerous that it cannot receive the sanction of the court.”
There was no competent evidence whatever that the defendant Finlay was charged by law with any duty with respect to the construction of the building.
This defendant, not being the owner, constructor or contractor engaged in the construction of this building, was a mere interloper, unless it can be shown that he had some duty to perform, enjoined by law, arising out of his employment by the superintendent of buildings as an inspector of iron and steel construction. Such a duty before it can exist must be prescribed by statute or ordinance, and it does not arise out of any relationship of the defendant to the construction of the building recognized at common law. There is not a statute- or ordinance which prescribes the duties of the defendant, and so far as the evidence discloses, there was no rule or regulation of the borough president or of the superintendent of buildings, promulgated as required by law, which defined any such duty. The bureau of buildings is created by virtue of the provisions of sections 405-414 of the Greater Few York charter. Section 406 prescribes the duties of the superintendent of buildings and provides for, and gives him the power to appoint, inspectors within the limits of his appropriation. It further provides that the “ Superintendent of Buildings shall have power to designate in writing one of the inspectors so appointed by him * * * to perform such duties as said Superintendent may direct.” Section 409 provides the method by which the president of a borough shall have power to establish general rules and regulations for the administration of the building department of his borough. However, there is no evidence, claim or • suggestion here that any president of this borough ever estab
Article 1, section 7, paragraphs 1 and 2 of the Building Code provide that the superintendents of buildings shall have power to adopt certain rules, etc., but such rules shall not become effective until they have been published in the City Record on eight successive Mondays, or until a public hearing on the same shall have been held. There is no evidence, claim or suggestion that any such rules existed, or that any such rules prescribed the duties of this defendant. Inasmuch as a rule adopted and promulgated as above provided would have the same force and effect as any provision of the Building Code, of which this court takes judicial notice, it appears as a matter of fact that no rules such as are provided for by the Building Code have ever been adopted by the superintendent of buildings of the borough of Brooklyn. Therefore, the prosecution fails, at the outset, so far as this defendant Finlay is concerned, in that it will never be able to show what, if any, were the duties of this defendant enjoined by lato, the violation of which it is essential to establish before this defendant could be held responsible for the collapse of the building upon any theory.
The testimony of the superintendent of buildings before the grand jury is replete with incompetent statements as to the duties of this defendant. Of course, such testimony cannot be considered in support of these indictments; but the introduction of such testimony before the grand jury was highly prejudicial and explains perhaps why the grand jury returned indictments against this defendant, which otherwise -would have-been highly improbable.
Moreover I find that there was no evidence that the defendant violated any duty; even if it be assumed that his duties wére as charged in the indictments, or that he was guilty of any negligent acts or omissions.
As regards specification (1) there is nothing in the plans as finally approved which calls for anchors. The plans show-
As regards specifications (2) and (3), wherein it is sought to predicate negligence upon the fact that cross-framing and sway bracing in every bay had not yet been installed, it is sufficient answer that the building was not yet completed, and that the building was not yet completed, and that if finally deemed necessary, these members could have been easily installed at any time before final inspection and the certificate of occupancy had been issued. It was the prerogative of the constructor and of the steel contractors to install the different members called for by the plans at such a time during the period of construction as they reasonably deemed proper. This defendant had, no- right to. dictate the sequence in which the different steel members should be placed.
The other numbered specifications have been sufficiently considered heretofore. Furthermore, it can hardly be contended that it was the duty of this defendant to remain constantly' at this building during the progress of the work to ascertain whether the construction of the building in all its details was progressing according to his conception of safe construction. His reports, together with his testimony before Chief Magis
Public nuisance and the elements thereof, acts of culpable negligence, proximate cause, identification of culpably negligent parties must all be proved beyond a reasonable doubt before a conviction may be had in a criminal cause and that could not as a legal proposition be done upon the record before me nor is a prima facie case made out.
The guilt of the defendants in the cases of People v. Buddensieck, 4 N. Y. Cr. Rep. 230, and People v. Polstein, 184 App. Div. 260, both cases of manslaughter by culpable negligence, was legally and well and promptly established by competent evidence, which is not the case here. In the language of the Court of Appeals in Burke v. Ireland, 166 N. Y. 305, 315: "After a careful examination of the case, we can see only a most sad and unfortunate accident, for the result of which the defendant, within acknowledged principles of law, cannot be held liable.”
Disposition might have been made of these indictments upon •the demurrers, for they are plainly demurrable, but inasmuch as that would under the circumstances, in my opinion, reach only to the form of these indictments, I have thought it better to grant the motions for dismissal and at the same time review the entire record as though the evidence were all competent and apply the law thereto.
The indictments are dismissed.
Ordered accordingly.