The cause of the plaintiff's injury was the negligent use of a scaffold in painting a signboard upon a building controlled by the *Page 450 defendant Gotham Silk Hosiery Co., Inc. That company had leased the signboard to Strauss Co., Inc. Strauss Co. in turn contracted with the defendant Weil for the painting of the sign. His employee was negligent in the fastening of the scaffold. For such negligence neither of the other defendants is liable. They may be held only for some breach of duty of their own.
To paint the sign, a scaffold, suspended over the street, was necessary. The temporary suspension of a scaffold over a street to permit a reasonable use of the premises abutting on the street is not unlawful. Nevertheless such use becomes unlawful and a nuisance if it is conducted in a manner which causes unreasonable danger to those using the street. The evidence in this case presented an issue whether in view of all the circumstances the scaffold did constitute a nuisance. Even so, the question remains whether either or both of the defendants may be held responsible for its creation.
The scaffold was not an obstruction of the street. "It could only become dangerous by being improperly constructed or by some wrongful and willful act." (Hexamer v. Webb, 101 N.Y. 377,386.) It has been said that "there is some risk incident to the projection of any object over a highway, but the duty of the owner of abutting property does not require him to provide against all possible injury, and it is only such injury as may be reasonably anticipated that he is bound to take precautions to prevent." (Weilbacher v. Putts Co., 123 Md. 249.) Accordingly it was held in that case that, under circumstances strikingly similar to those presented here, an abutting owner was not liable for injuries caused by defective fastening of a scaffold used by an employee of an independent contractor. (Cf. Davis v.Whiting Son Co., 201 Mass. 91.)
In this jurisdiction we have held those who undertake work in a public highway to a strict duty of care to guard against risk inherent in the work. Difficulty at times *Page 451 arises in determining whether injury arises from a hazard which is inherent in the work, or from collateral negligence in a detail of the work. The distinction has recently been pointed out in Boylhardt v. DiMarco Reimann, Inc. (270 N.Y. 217, 220), and I agree with the opinion of Judge O'BRIEN in so far as it holds that the trier of the fact might find that the plaintiff's injury here arose from a danger which was "inherent in the work contracted to be done and might reasonably be expected." Strauss Co. initiated the work and may be held liable for its consequences.
The situation is different in regard to Gotham Hosiery Co., Inc. Though it had not parted with control of the whole building, it had parted with control of the signboard. It still remained under a duty to exercise care in the maintenance of the building in a safe condition but in this case the building was safe and the danger arose from the temporary use of the space above the street by the lessee of the signboard. It is not under any duty to supervise such use. It is not under any duty to guard against danger connected with such use. (Zolezzi v. Bruce-Brown,243 N.Y. 490.)
It is true that when Gotham Hosiery Co., Inc., leased the signboard, it may have been charged with knowledge that the lessee would at times suspend a scaffold over the street which might become a nuisance if reasonable precautions were not used. None the less the defendant did not thereby become a party to the creation of the nuisance. It leased a signboard which was not dangerous and could not become dangerous unless used without reasonable precautions. It did not control that use, and I cannot see upon what theory it could be charged with a duty to take precautions so long as it did not control the use. (Cf. Kirby v. Newman, 239 N.Y. 470; Leonard v. City of Hornellsville,41 App. Div. 106; appeal dismissed, 166 N.Y. 590; Schroeck v.Reiss, 46 App. Div. 502; Opper v. Hellinger, 116 App. Div. 261; 2 Wood on Landlord *Page 452 Tenant [2d ed.], § 536; Joyce on Law of Nuisances, §§ 461, 466; 1 Tiffany on The Law of Landlord Tenant, § 101.)
Judgment against Gotham Hosiery Co., Inc., should be reversed and complaint as to it dismissed.
HUBBS, CROUCH and LOUGHRAN, JJ., concur with O'BRIEN, J.; CRANE, Ch. J., concurs in the result on the ground that the Gotham Silk Hosiery Co. and Strauss Co. were engaged in a joint enterprise; LEHMAN, J., dissents in opinion, in which FINCH, J., concurs.
Order affirmed, etc.