Cullom v. McKelvey

49 N.Y.S. 669

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1898
• Status: Published

Opinion

PATTERSON, J.

The plaintiff’s intestate, a laborer employed in the demolition of an old building in the city of New York, was killed by such building collapsing, after some part of it was taken down. The defendant McKelvey was the owner of the premises, and he had employed the defendants Keegan & O’Keefe, as contractors, to do the work of tearing down the building. They were independent contractors, and the plaintiff’s intestate was their servant. No relation of master and servant existed between him and the defendant McKelvey, nor did the latter in any way induce the plaintiff’s intestate to enter upon the employment or to become engaged in the work. The cause of the fall of the building was the overweighting with brick of one of the floors. That was the result of the negligence of the contractors or of their servants. McKelvey owed the plaintiff’s intestate no duty whatever. McKelvey was not doing the work nor in charge of it. All that is testified to about his being connected with it is that he was about the building every day. One of the witnesses did say that McKelvey was giving directions, but he immediately afterwards testified that he did not hear McKelvey give any directions. There was an entire absence of proof to connect McKelvey in any way with the subject-matter of the action, so as to make him liable.

The nonsuit as to' McKelvey .was properly ordered, and the judgment should be affirmed, with costs. All concur.