I am unable to concur in the decision about to be made in this case. The only possible evidence of any disturbance of the flagstone walk producing the defect which caused plaintiff’s injury is that furnished by the plaintiff’s son, who testifies that in the summer of 1902 he remembers that a stone wall was constructed in the rear of defendant’s premises; that-he remembers one morning in July that he saw a wagon driven over the flagstone walk; that the wheel turned over a flagging, and that he saw the flagging on the south end come down and the front end raised up, and when the wagon went by the stone fell back a little bit on to the other ahead of it. He said he noticed when a wagon was going across that particular place it would raise the flag up, and it kept getting worse all the time; that he had seen wagons marked “ Siegel-Cooper Company ” going in and -out of that lane about once a week, but it appears conclusively that the only wagons of the latter description which he had seen were wagons moved over the walk by hand, when they were being placed in storage. The only wagon which is alleged to have misplaced the flagging, producing an obstruction over which the plaintiff fell, was one used by an independent contractor who was drawing the stone to be used in the construction of the rear wall, and just how the defendant can be held liable for this defect is one of the things which I have not been able to understand. If this independent contractor had driven his wagon over a sidewalk a mile up the street, and had produced the same condition there, would the defendant have been liable ? Clearly, when one lets a contract to an individual to construct a wall upon his own premises he does not assume responsibility for the negligence of the contractor in moving the materials to the place; he does not undertake the obligation that the contractor’s teamster shall be free from negligence in driving over the common highways, and it is difficult to understand how the defendant in this case could become responsible for the condition of the sidewalk in front of its premises, without ever having interfered with the same. Of course, if the work which the contractor undertook was essentially dangerous to the public; if it involved blasting in the public highways, or even upon the defendant’s premises, in such a manner as to throw the materials into the highway or upon the premises of other persons, the defendant *240would be liable, notwithstanding the fact that the work was done by an independent contractor. But in this case the work undertaken by the contractors was the construction of a wall upon the premises of the defendant. It was not a. work which in any way menaced the public; it was not a work from which any substantial danger could be reasonably anticipated to any one. The only dangers which -could arise must result from the negligence of the independent contractor in the prosecution of the work, and I know of no authority which holds that under, such circumstances negligence may be imputed to the owner of the premises. The sidewalk was not used for the benefit of the defendant; it was used, if at all, for the convenience of the independent contractor in bringing materials to the place where the wall was to be constructed. ■ It was not necessary to drive the wagons over the sidewalk, so far as the defendant was concernedthe' defendant had nothing to do about the method of getting the materials upon the ground. So far as appears the stones might have been delivered by the side of the roadway and transferred to the wall by means of derricks or other . mechanical contrivances, or they might have been carried there by the workmen, or been delivered with small skidding appliances. In other words, when the defendant made a contract with an individual-to construct a wall upon the rear of its premises, it was not bound to provide the details of getting the materials upon the ground. It had a right to assume that the contractor would get the stones to the wall in a proper manner, and it was not bound to follow up each wagon load of materials -and see that no harm resulted to the highways from the passage of the load over it. The primary duty of . taking care of the highways rests with the municipality (Bieling v. City of Brooklyn, 120 N. Y. 98, 106), and in the absence of evidence showing that the highways had been affirmatively interfered with by the defendant there is ho foundation for the plaintiff’s recovery. (City of Rochester v. Campbell, 123 N. Y. 405, 417; Tremblay v. Harmony Mills, 171 id. 598, 602, and authority there cited.) There is absolutely no evidence of the neglect of any duty which the defendant owed to the plaintiff. The defendant did not authorize the use of the sidewalk; the sidewalk was not used for any purpose in which the defendant was legally interested, and if there was any liability outside the liability of the municipality for *241the condition of this sidewalk it was that of the contractor who had injured the sidewalk by driving over it to accomplish his own purposes ; for the purpose of enabling him to place the materials upon the ground so that he could carry out his contract with the defendant. As the defendant was not obliged to assume that the independent contractor would proceed negligently or unlawfully, it could not owe any duty to the plaintiff in respect to the conduct of the contractor or his servants, and there can be no legal or moral liability under such circumstances.
I think the judgment and order appealed from should be reversed and a new trial granted to the defendant.
Judgment and order affirmed, with costs.