Albert E. Ellefson, Respondent, v. Isaac Singer, Appellant

Albert E. Ellefson, Respondent, v. Isaac Singer, Appellant. Second Department, April 30, 1909. Master and servant — negligence — liability for acts of person employed by janitor. Where a person employed by the janitor of a building to do his work without the owner’s knowledge or consent threw a board from the roof to the injury of a person below, the owner is liable. Rich, J., dissented. Appeal by the defendant, Isaac Singer, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff rendered on June 15, 1908. Meier Steinbrink, for the appellant. Ed. J. Fandrey, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The claim of the plaintiff was that the person who threw the board from the roof of the defendant’s tenement house to the yard below and injured the plaintiff’s wife, who was a tenant of the adjoining house, wás the janitor of the said. tenement house. It may be assumed that it was preyed by the defendant that she was not his janitor, but that she was employed by the janitor to do his work without the knowledge or consent of the defendant-; nevertheless the defendant would be liable for her negligent acts in such work. The familiar case of the servant set to woi'k to shovel snow and ice from the rodf permitting ,a volunteer to help him, who cast ice on the head of one below, is applicable (Althorf v. Wolfe, 22 N. Y. 355 ; Wellman v. Miner, 19 Misc. Rep. 644); Ho one would’ be likely to believe the unlikely testimony of the defendant and his janitor that by the terms of the employment the janitor -had noth- , ing to do with seeing to the roof or the outside of the house; if, indeed, it would make a difference if That were true. The judgment should be affirmed. Woodward, Jenks and Miller, JJ., concurred; Rich, J., dissented. Judgment of the Municipal Court affirmed, with costs.;