I cannot agree in the conclusion reached by my learned associates and, therefore, state my own views, necessarily at some length.
This action, originally, was brought against the defendant Ireland, the owner of land in the borough of Manhattan upon which a building was in process .of erection during the summer of 1895, under contracts with John H. Parker and J. W- Cornell, both of whom were made co-defendants. On August .eightji the building collapsed, and in the fall the plaintiff’s intestate, while in the employ of one Guider, with whom the ¡defendant had made a contract to do the plastering, was killed. A trial was had in 1896, when the jury ■rendered a verdict against Ireland and in favor of the other defendants. An'appeal was taken by Ireland from the judgment entered on that' verdict, but no appeal was taken by the plaintiff from the judgment in favor of Parker and Cornell, and as to them the action has terminated. This court reversed the judgment against Ireland for an error in the charge (26 App. Div. 487), which is not of interest on the present appeal. The general facts of the case are quite fully stated in that opinion and need not be- repeated here. We shall *437refer to such facts only as may be necessary to point out essential differences in tbe evidence given at the two trials. In the first appeal the questions arose whether the defendant had employed a competent architect to prepare the plans and specifications, and whether the defendant was responsible for the acts of such architect. Upon that point this court, Hr. Justice Cullen writing, said : “ It does not appear, except from the recitals in the contracts, that Behrens was an architect at all, much less that he was a competent or proper one; nor does it in any way appear that Behrens was responsible for the plan and character of the building and that the appellant was not. For aught that there is in the record before us the whole plan and character of the building, the size of the foundation, of the walls, of the posts and the girders, may have wholly-proceeded from the direction of' the appellant.. The duty or discretion of an architect is confined within, such limits as Ms employer imposes upon him. The appellant having contracted for the construction of this building, if the building was inherently defective and dangerous, prima facie, he is responsible therefor, and if he can escape liability for such inherent weakness and danger by the employment of an architect, and his acting upon the architect’s advice, it was incumbent on the appellant to affirmatively show those facts. Therefore, the employment or advice of the architect is not an-element in this case.”
In the opinion also in tbe Savage case, which was argued at the same time as, and is reported with, the Burke case, it was said: “ We think that in such case, where an owner employs a competent and skillful architect to design the building, he is not responsible to the employees of contractors who agree to construct the building according to such design, for faults or defects in the design of which he neither knew nor should have known. Of course, to relieve the owner from liability, it must appear that he fairly committed the subject-matter to the architect, arid that the deficiencies or defects of the. design did not proceed from, his interference or direction.” It is to.be observed that on the last trial of this action the court embodied the last quotation in the charge, and it is the law governing the present appeal.
The learned counsel for the plaintiff states in his brief that the case was submitted to the jury on two grounds :
*438“ 1. Whether the defendant Ireland was guilty of negligence in having contracted for the construction of a building which was inherently defective and dangerous, or in violation' of the Building Law. 2. Whether the defendant Ireland was guilty of negligence in failing to use proper care to provide a proper bed or bottom upon which to rest the foundation for the third tier of columns.”
The" learned counsel for the defendant states the submitted questions somewhat differently:
“ 1. ‘ Was there anything, in the original plans for the foundation which was inherently defective ? ’
“ 2. c Was the defendant able to judge of the sufficiency of the foundation as it appeared to him upon the plans as they were prepared for him ? ’
“ 3.. ‘ Did the defendant fairly *commit the subject-matter of the ' building to the architect? ’
’ “ 4. £ Did the defendant furnish to the contractor a safe' and proper bottom upon ‘which to place the foundation for pillar No. 3 ? ’
££ £ Was the condition of the ground such that the defendant or the architect ought to have taken notice of a condition which might imperil the construction'of the building? Was there' anything there that could be seen ? ’
Ought the defendant or the architect to have discovered the condition of things and seen to it that the foundation was not erected upon such a bottom as, concededly, was found to exist there subsequently ? ’ ”
The first ground upon which, as argued by the plaintiff’s counsel, the case was submitted to the jury was whether Ireland was negligent in contracting for the- construction of an inherently defective and dangerous building or one in violation of the Building Law. This question involves.the qualifications o'f the architect, the defendant’s reliance thereon, the character of the building as originally planned, and the approval -of the plans by the building department. On the last trial, as well as on the first, neither the defendant Ireland nor Behrens, the person named as architect in the building contract, was examined as a witness. Ireland, however, was examined as a witness at the subsequent trial of the Savage case. The plaintiff’s counsel, on the last trial of this action, produced as a witness Mr. Ayres, counsel for the plaintiff Savage, to prove certain parts *439of the testimony given by Mr. Ireland on the Savage trial, and part of it was practically read to the jury. The method of the admission of this evidence was not error, as it was evidence of a statement made by Ireland. The defendant’s counsel offered to read the rest of Ireland’s testimony and the plaintiff objected, but the court ruled that the defendant was entitled to read “ any portion of this testimony, or all of it, if necessary for that purpose, that tends to qualify or explain that which has been already introduced and additional portions of the evidence were read by the defendant without specific objection by the plaintiff’s counsel, who subsequently. read other portions. The testimony was properly admitted, and forms part of the evidence upon which the appeal is to be decided.
Mr. Ireland testified that he employed Mr. Behrens, an architect, to draw the plans and specifications of the building in question; that he had known him for several years, and had previously employed him on two buildings, the work of which was satisfactory to the defendant; that ■ before he employed him on previous work he asked his carpenter if he knew of a good architect, and the carpenter recommended Behrens; that Behrens told him of several buildings on which he had been engaged for a number of years, and that he had been employed by one Mr. Williams, a large builder." There was also evidence from the carpenter who recommended Behrens, to the effect that the latter was good in details óf his work. This is all the evidence of Behrens’ capacity and character as an architect, and while it might not have been considered as matter of law that the defendant had proved Behrens to have been a “ competent and skilled architect ” for a building of this character, as he was hound to do, in conformity with our previous opinion, yet, when the defendant’s counsel asked the court to charge that the evidence showed that Behrens was a proper ánd competent architect, and that it was not contradicted, the plaintiff’s counsel asked the court to charge that the question was not whether Behrens was a competent and proper architect, but whether the defendant actually committed to him the decision of the question of plans and specifications. It must, therefore, be assumed that it was conceded by the plaintiff that Behrens was shown to have been a competent and skillful architect.
The next question in order is whether the defendant relied upon *440and fairly committed, the subject-matter of the building to the architect., Ireland testified that personally he did not know anything as to the required strength or detail of a building of this size and character ; that when he employed Behrens to prepare plans for the present building he told Mm what style of building he wanted, but left all of the details to him ; that he intrusted the entire management of the plans and specifications of the building to him, stipulating that it should of the best materials, and that he relied upon Behrens to give him the best kind of a building. . It was also proved that Behrens’ plans were submitted to and approved by the building department by the defendant’s direction. There is no testimony directly contradicting these facts. The court charged that, the defendant being a layman, it was for the jury to decide' “ whether or not ,he was able to judge of the sufficiency of this foundation as it appeared1 to him upon these plans,- as. they were prepared for him.” But as he employed a competent architect to prepare the plans and specifications in a matter of which he "was ignorant, and committed the matter entirely -to him, I think he was not responsible for the errors in the plans of an architect admitted to be competent and skillful. The submission of this question to the jury, against the objection of the defendant, was, therefore, legal error. Such is the effect, of the previous quotation from the opinion of this court in the Savage Case (supra).
This is not at all in conflict with Pitcher v. Lennon (12 App. Div. 356), where Mr."Justice O’Brien said: “The only evidence that, he employed an architect at all is the indorsement upon the plans of the name of a firm described as such. For all that appears the defendant may have known in the first place that the plans, contained an illegal feature, or even have directed it. The evidence, at all events, of subsequent knowledge is strong.- The case is not the one — to which the defendant’s requests would apply, if at all — of the architect in collaboration with the builder without intervention on the part of the.owner/ It was the owner, Lennon,-who took the plans and gave them to the builder and superintended the construction. He thus learned, or should have learned, that the, building was being erected in an illegal manner-; and this, as has been said, renders him liable.”
In the case of Foot v. Ireland, referred to in the opinion of Mr. *441J ustice Hatch, the learned Appellate Division of the first department, as I read the opinion, assented to the doctrine as to the employment of an architect, which we declared in the Savage case, but placed the reversal of the judgment of nonsuit on the ground that “ Ireland is not exonerated from liability, it not being shown that he employed a skilled and competent architect, and that he relied upon him both for the preparation of plans and the superintendence and inspection of the work and that he did not interfere with the architect in the discharge of the duties the latter assumed to perform for the owner. The defendant’s position is defective, in that there is nothing in the record to inform us. who Mr. Behrens, the architect, was, or whether he was competent, or what education, knowledge or experience he had, or what his capacity was to deal with so large and important a subject as the planning and erection of this great building, for Mr. Ireland. The owner is called upon to show further that he did not control, direct or interfere with the architect in any manner. It will not suffice to say that Mr. Behrens was'a skilled architect because Mr. Ireland considered him such or the architect represented himself to be such, as by signing the plans ; nor is it enough for the defendant to say that he relied upon the approval of the plans by the building department as a certificate of capacity or compétency of the architect he employed. For the want of evidence to show that Mr. Ireland could rightfully' rely upon the architect he employed, the judgment and order must be ■reversed.” ■
In the case at bar, I think that all the facts which, according to the opinion of Mr. Justice Patterson, were essential to the defense, were either proved or conceded.
This, however, does not entirely dispose of the question whether the building, as planned, was inherently dangerous and defective. It clearly appears that the building which fell was not constructed in accordance with the original plans, and it is no answer to this that even such plans had no sufficient factor of safety. It is not certain that the building would have fallen suddenly and in the manner in which it did, if it had been erected according to the plans. Juries cannot be permitted to enter the domain of speculation and render verdicts on a state of facts which never existed." *442The plans called for ,a concrete foundation under column 3, eighteen inches in thickness. There was evidence tending to show that Behrens assented to a "reduction of the thickness of this concrete to twelve inches,' and it seems to be conceded that this was a contributing cause to the collapse. But Behrens had no authority from the defendant to give such consent., It was outside his power and the act was not that of the defendant for which he is responsible; unléss he knew of it or was privy thereto,, and there is no evidence of any such knowledge or privity, On the former appeal the court held that as the contract provided that the work should be done in accordance with the plans and specifications, although it provided that the work should be executed ■ under the direction and to the satisfaction in all respects of Behrens or other architects of the owner, yet this provision did not authorize the architect to modify, the plan or relieve the contractor from doing the work called for by the contract; and that for neglect in this respect the defendant was not liable, as such a consent of the architect was not within the scope of his employment.
I have not lost sight of the plaintiff’s contention that the plans were in violation of the Building Law. If the building had been erected in exact accordance with these plans, such contention might be taken into consideration, but Behrens’ unauthorized • change of the original plan takes that question out of the case, for -it seems to have been conceded by both parties on the trial, and the trial was conducted on the theory, that the accident resulted from placing a twelve-inch concrete foundation for column No. 3 partly on undisturbed land and partly on the wall of an old cesspool or cistern, which formed the fulcrum to a lever constituted by the concrete, inasmuch as the undisturbed earth was likely to settle more or less under the- great pressure transmitted through the column, while the wall of the cistern afforded greater resistance ; and that this greater strain on the part supported by the earth caused a break in the concrete, resulting in the suddlen collapse of the structure above it. It is also to be remembered that a witness for the plaintiff, an architect connected with the buildup department, testified that Behrens’ ¡dans were examined by the experts of that department and approved as plans of a building capable of carrying the loads that would be imposed upon it. Thus we have this condition shown by the evi*443dence: An architect admitted by the plaintiff’s counsel to have been competent and skillful, plans prepared by such architect and examined and approved by the building department, to which the charter of the city confided that public duty, and testimony from an architect connected with the department to the effect that “if the building had been constructed according to the plans and specifications filed in the Department of -Buildings and approved by the Superintendent of Buildings, the building would not have collapsed.” Two of the plaintiff’s witnesses testified that if the building had been constructed according to the original plans it would not have collapsed as and when it did, though it eventually might have “failed ” gradually, and that the real cause of the collapse was. the laying of the concrete over the'cistern. In other words, not the original plans of the architect, but the change from such plans and. the work of the contractors in building were the causes of the collapse. It would seem that a layman could hardly be expected to possess technical knowledge of. what is proper for the construction' of a building of this character, and that the defendant was justified in relying upon the judgment of his architect and the approval of the building department, unless it could be said that the plan was so utterly and inherently defective as 'to be dangerous to the commonest observation ; and there is no evidence to support any such proposition. This disposes of the first of the two grounds upon which, as stated by the plaintiff’s counsel, the case was submitted to the jury; for the defendant, having employed an architect who was conceded on the trial t.o have been competent and skillful,' and to whom he committed the entire subject, cannot be held guilty of negligence in contracting for the construction of the building planned by such architect, unless he knew, or should have known,, that it was inherent!)7 defective.
There remains the second question, whether the defendant was negligent- in failing to use reasonable -care to provide a safe bed upon which to rest the foundation of column No. 3. He had made a contract with one Garry, who was to “ do all the digging * * * in time .so as not to delay other mechanics * * 'x" agreeably to the Drawings and Specifications made by Olías. R. Behrens, Arch’t. * * * within the time aforesaid, in a good,, workmanlike and substantial manner, to the satisfaction and under the direction of the said architect.” The defendant’s contract with Parker, *444the builder, provided that “No concrete shall be laid in trenches until same has been examined by the Architect, as concrete must not be laid on a disturbed bottom. No finished concrete work will be accepted unless same has been approved" by the" Architect before being covered over or built upon.” The testimony of the defendant, taken on the Savage trial and read on the present trial, was to the effect that he employed Behrens as an architect, and to “ superintend the work of all the contractors * * * both as to material and construction,” and that defendant “ entrusted the entire management.to the architect * * * of the construction of this building, * * * stipulating that it should be of the best material.” On examination by his own coúnsel, the defendant explained that in using the word “ superintend ” ' he gave Behrens no other authority than that of an architect, as specified in the contract.
On the former appeal, this court did not specifically decide the extent of the responsibility of the defendant for the failure of the architect to supervise .the work and to see that there was undisturbed bottom on which the foundation of column No. 3 was to rest before the concrete work was laid down, but I cannot draw any distinction between that part of the architect’s duty and his -duty to provide proper plans. If failure on the part of an architect to prepare proper and sufficient, plans cannot be imputed to his principal as negligence, by the same reasoning the failure of the architect to see that there was an undisturbed bottom upon' which column No. 3 was to rest cannot be imputed to the defendant as. negligence. Each duty was confided to Behrens by reason of his being an architect and by .the same contract. The defendant’s undisputed testimony shows that he was a layman as to matters. of this kind' and knew nothing of the defects of building', or of the -sustaining weight of concrete or structural erections. Indeed, it may be -said that for this reason the profession of architects exists.
On the entire evidence there can be no question that the accident resulted from the negligence either of one or more of the contractors or of the architect, and for their ■ negligence the defendant is not responsible.
In the recent case of Berg v. Parsons (156 N. Y. 109, 115) the court had occasion to consider .the doctrine of respondeat superior, *445and recognizing the general rule to be that “where the relation of master and servant, or principal and agent, does not exist, but an injury results from negligence in the performance of work by a contractor, the party with whom he contracts is not responsible for his negligence or that of his servants,” used the following language: “ There are certain exceptional cases where a person employing a contractor is liable, which, briefly stated, are: Where the employer personally interferes with the work and the acts performed by him occasion the injury ; where the thing contracted to be done is nnlawful; where the acts performed create a public nuisance, and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency.” I think these constitute the only exceptions to the general rule. There is in the case at bar no evidence which brings it within any of these exceptions, for there is no evidence that the defendant did personally interfere with the work, or that the structure was unlawful or a public nuisance, or that the defendant was bound by any statute to erect the building otherwise than in the manner provided for in the original plans.
It is due to the learned judge before whom the trial was had to say that a motion for the dismissal of the complaint was made at the close of the evidence and that the decision of the question was reserved until after the verdict, on the theory that the case came within the provision of section 1189 of the Code of Civil Procedure. Subsequently to the verdict, in an unreported opinion which is hereto* appended as a note, the court granted the motion for the *446dismissal of the complaint, but afterward came to the conclusion that section 1189 was not applicable to cases where, as in the present, a general verdict had been rendered, and thereupon, with the consent of the defendant’s counsel, vacated the order dismissing the complaint.
The conclusions stated above render unnecessary the examination of any other question rhised on this appeal. . I think that the judgment should be.'reversed. . ,
Judgment and order affirmed, with costs.
Garretson, J. (orally) :
I am not satisfied with the result in this case. The submission of the case- to the jury was largely against my own judgment as to what disposition ought to have been made of it on the facts and under the law applicable. As the case was presented to the court after the withdrawal of one of the grounds by Hr. Patterson, there seemed to be but two questions left upon which the liability of this defendant could be predicated, and one of those, I must say, I regard as being of extremely doubtful value. The only one that impressed me with any considerable degree of force at the time was that with reference to the duty of the defendant to see to it that a proper bed was found — that the ground was prepared in such a way that the contractor for the construction of the-building could have, when he commenced his work, that which was required and called for by the plans and specifications, an undisturbed bottom — the excavation having been made by an independent contractor. I think that, so far as the plan of construction is concerned, which was the first ground, as to whether there was *446an inherent defect in the plan, so that it was dangerous to build from the plan, the defendant did'all that, under the law, he was required to do or could be expected to do, when he selected a skillful and competent architect, and when he employed and made his contract with a builder who w.as reputable and well qualified, to perform the particular work. Now, as to the foundation being placed upon an undisturbed bottom, the owner had provided in his plan and specifications, and in the contract, for just that. He had not specified the construction of the building upon anything hut an undisturbed bottom, and he had committed the determination of whether that foundation was to he constructed upon an undisturbed bottom to his architect; and if there was any violation of duty, it was a violation of duty in this regard, by the builder and by the architect, of matters and things which had been completely and entirely committed to their charge or provided for by the contract, and it seems to -me that the defendant could not have done anything more than he did in that regard. .It could not be expected of him, under the circumstances, any more than it could be expected of any other owner, to be upon the ground at the time that this work was commenced, and see that it was performed according to the tefms of the contract, and according to the terms of the specifications, or any more, than that he should examine any other detail of the work, to see whether it was according to the plans and specifications, and as provided for by the contract. I was unable to get away from that view of the case on these questions which are presented, and I sent the case to the jury under rules and upon questions which did not strongly impress me, and in respect to which I have some considerable doubt, yét I felt at the time that that was the wiser course to pursue. The case is now in- such a position-that you can both have the benefit of what is in it; we have the verdict here, and we have the two motions now pending for the nonsuit. If I set aside this , verdict and grant the motions the case goes to the Appellate Division in such form that, if I am wrong and the verdict ought to stand, the Appellate Division can give you the benefit of it without granting a new trial, and that is the disposition which I will make — I will set aside this verdict and I will grant both motions, the motion made at the close of the -plaintiff’s case,, and the motion made at the close of the whole case.