It is an undisputed fact in this case that the defendants Thayer & Hastings, as the agents of .the defendant Brown, were charged by their principal with the supervision of the work to be performed *49under the contract with the defendant Luther for the reconstruction of the building in question.
On the 24th day of April, 1896, the defendant Brown wrote Thayer & Hastings as follows: “ We, of coursé, rely on your careful observation as regards the specific and proper carrying out by Hr. Luther of his contract, and when finished, as to its completeness.”
In response to this letter the parties to whom it was addressed, under date of April twenty-fifth, say: “ Please accept our thanks ' for your reliances and confidence in us, which we will assuredly exert ourselves to merit in attending to your best interests in the matter ■—■ looking to the details of the work as it progresses and making payments only after it is properly and thoroughly done.”
The defendant Hastings testified that he and Thayer knew that it was their duty to watch Luther and see that he fully performed his contract, and he further testified that before making payments he personally inspected the work.
It also appears that both Thayer and Hastings were men of experience, and that one, if not both, of them was quite familiar with the business of constructing and reconstructing buildings by contract. It is quite obvious, therefore, that if they had been at all faithful to the obligation which was cast upon them by their principal, as they assured him they would be, they must have observed the means employed by Luther to perform the work called for by his contract, and they must also have known that he was performing that work regardless of the instructions of the bureau of buildings in the city of Buffalo, and in a manner which was grossly negligent.
It is impossible to read the record in this case without reaching the conclusion that the proximate cause of the disaster which resulted in the plaintiff’s injuries was the violation of or failure to observe the instructions given by the city inspector of buildings; and it seems equally clear that men of average intelligence and ordinary experience not only ought to have known that these instructions were not being observed, but they ought to have anticipated just the result which followed their non-observance.
In these circumstances, it seems to me that the doctrine invoked by the defendants, and which is laid down in a line of cases of which *50Engle v. Eureka Club (137 N. Y. 100) is a type, has no application, but that the question here presented is similar in principle to that involved in the case of Pitcher v. Lennon (12 App. Div. 356). ■ In other words, I think that Thayer and Hastings were clearly guilty of misfeasance, for the consequences of which' both they and their - principal should be held responsible.
For these reasons, I am constrained to dissent from the prevailing . opinion, and to vote for a reversal of the judgments and orders appealed from.
"Ward, J., concurred.
Judgment and order affirmed, with costs.