April 30, 1909.
Meier Steinbrink, for the appellant.
Ed. J. Fandrey, for the respondent.
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, was the janitor of the said tenement house. It may be assumed that it was proved 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 work to shovel snow and ice from the roof 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). No 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 nothing 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.