Andrew Lauder, Respondent, v. Samuel H. E. Jennings and Thomas Welstead, Appellants

Andrew Lauder, Respondent, v. Samuel H. E. Jennings and Thomas Welstead, Appellants. First Department, February 2, 1912. Master and .servant—.negligence—fall through opening in floor—safe place to work. Where in an action by a servant against liis master to recover for personal injuries it appears that tbe -master was engaged in -making alterations in a building including the -enlargement of the windows and the extension of a dumbwaiter shaft; that in the course of the latter work the floor of a closet on.the second floor -was removed; that plaintiff, who had been engaged in setting sashes for the windows on the first floor, went to the second in order to set "the sashes there; that before commencing his work he opened the door of the closet to hang up his hat and coat and, not observing that the floor had been removed, fell through the opening, he cannot recover for his injuries on the theory that defendant was negligent in not notifying him that the floor of the closet had been removed. The closet was not the place in which he was to work, nor did he have any right to enter'it. Appeal by the defendants, Samuel H. E. Jennings and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 14th day of February, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 24th day of February, 1911, denying the defendants’ motion for a new trial made upon the minutes. James B. Henney, for the appellants. Charles Maitland Beattie, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Shortly after seven o’clock in the morning on July 25, 1907, the plaintiff, an employee of the defendants, sustained personal injuries by falling down a dumbwaiter shaft. He brought this action to recover the damages sustained on the ground that the same were due solely to the negligence of the defendants. He had a verdict of $1,500, and the defendants appeal from the judgment entered thereon and from an order denying a motion for a new trial. The defendants were contractors, and at and for some time prior to plaintiff’s injuries were engaged in making certain changes in a building located at 691 Madison avenue, Mew York city, The changes, among others, consisted in putting in larger windows and extending a dumbwaiter shaft from the first to the second floor. In the hall, about four feet from the top of the stairs leading from the first to the second floor, was a closet in which the dumbwaiter was to be installed. For that purpose the floor of the closet, at the time in question, had been removed. The plaintiff, some two or three days prior to the accident, had been engaged in setting sash for the windows on the first floor and, having finished there, on the morning of the accident went to the second floor to set sash there. Just before commencing his work he opened the door leading into the closet referred to, and observing some hooks, on which he intended to hang up his coat and hat, and not observing the floor had been removed, stepped into the opening and fell to the floor below, sustaining the injuries of which he complains. The recovery is sought to he sustained upon the ground that the defendants were negligent in not notifying him that the floor in the closet had been removed. But this ground is untenable because there was no obligation resting upon the defendants to give him such information. The closet was not a place in which he was to do his work; it was not in any way connected with the work to be done by him, nor did he have any right to go into it. The door to the closet was closed, and that at least should have suggested to him to keep out of it. The place furnished for the plaintiff to work was the room in which the sash was to be set. Defendants were not hound to anticipate that he would leave that place, go roaming over the building, or enter a closed closet where he had no work to do and no right to go. Before the defendants could he held liable plaintiff was bound to establish that his injuries were due solely to the omission of some duty on their part, and this he utterly failed to do.' The judgment and order appealed from are, therefore, reversed and a new trial ordered, with costs to appellant to abide event. - Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.