John Masal, Appellant, v. Ignace Tarrnowski and Joseph Tomanek, Respondents

John Masal, Appellant, v. Ignace Tarrnowski and Joseph Tomanek, Respondents. Second Department, October 16, 1908. Nuisance — injury by fall of fence shielding building— presumption. In an action to recover for injuries received by the fall of an insecurely fastened board fence erected to shield a building under process of construction, it will be presumed that the fence was erected by the owner in the absence of evidence to the contrary, and a non-suit is error. Appeal by the plaintiff, John Masal, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the' clerk of the county of Queens on the 2d day of December,. 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from' an order bearing date the 15th day of November, 1907, and entered in said clérlc’s office, permitting a substitution of attorneys for one of the-defendants. . • The evidence showed that a building was, in thecoursé of erection on the lot of the defendant Tomanek-; that in front of the building, "and along the inner line of the sidewalk, a close temporary board fence or-shiéld to the front of the'building was; erected;, that it was 14 feet high;. that as the plaintiff was passing on the sidewalk it fell over on him ; that it was held upright by cleats fastened to the said fence and the building; that they were weak and insufficient,. and gave way from the wind that was blowing. I. Henry Harris, for the appellant. John M. Zurn, f'or the respondents. [MAJORITY — Gaynor, J.:] Gaynor, J.: There seems to be no reason for the dismissal in the case- of the defendant Tomanek, the owner of the property. In the absence of any evidence on that head, the presumption Was that he was. doing the work on his property, and erected the fence or shield-in front of it, which, if-so unsafely, fastened as .to be likely to fall into-the street, was a nuisance (Vincett v. Cook, 4 Hun, 318). The other defendant was in no way connected with the property or the work upon it. The judgment should be reversed in respect of the defendant Tomanek, and affirmed as to the other defendant. Woodward, Jenks, Hooker and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event,, as to the defendant Tomanek Judgment affirmed as to the defendant Tarrnowski, with costs. Order appealed from affirmed.