Fay v. German Gen. Benevolent Soc'y

MELVIN, J.

Plaintiff, who was a plasterer, was seriously hurt by a fall due to the breaking of a rope holding the platform upon which he was standing while at work. That he was badly injured is not controverted, and that at the time of the accident he was putting a coat of plaster upon the sides of an air shaft in one of the buildings of the German Hospital which the defendant corporation was constructing is also undenied. Judgment was given in favor of plaintiff for seven thousand five hundred dollars. From this judgment and from an order denying its motion for a new trial defendant appeals.

The principal attack of defendant’s counsel on the judgment is based upon the argument to the effect that the plaintiff was employed by an independent contractor and not by defendant. A contract had been let for the construction of the hospital but the contractor failed to complete his work and thereafter the superintendent of the hospital, W. P. Barry, was appointed to take charge of the work and to see that the building should be completed in accordance with the plans and specifications prepared by the architect. In performing his duties, Barry, as he testified, sometimes made contracts and sometimes did not. He entered into a written arrangement with Smythe Brothers, for the work of plastering. By the terms of this agreement Smythe Brothers were to do all the work of plastering to be done in the group of buildings known as the German Hospital. They promised to perform their part of the contract in a thorough and workmanlike manner and in strict accordance with the plans and

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specifications of defendant’s architects. This writing also contains the following:—

‘ ‘ Should the said Smythe Brothers fail at any time to have sufficient men or materials so as to delay the general work, or neglect the same in any way, or act in any way unsatisfactory to architect it shall be in the power of said W. P. Barry to remove said Smythe Brothers from the work and continue the same without hinderanee. All material necessary for said plastering to be purchased by said Smythe Brothers as required and they shall present a bill for the same monthly to the said German General Benevolent Society, adding to said bill five per cent of the same and five per cent of labor paid during the month said bills were contracted. All of the labor required in said plaster work shall be paid net by the German General Benevolent Society each week. On the final and satisfactory completion and acceptance of said work, said Smythe Brothers are to receive an additional five per cent of all bills, for material and all labor paid during the progress of the work.”