The single question presented for our determination is whether the defendant was liable for the damages caused to plaintiff’s building by the negligent blasting.
Upon one of two theories he would be liable, either that he was the contractor engaged in blasting, or else as superintendent or assistant he directly participated in the negligent use of the explosives which injured the plaintiff’s building. Upon the latter theory the defendant, whoever may have been the responsible contractor, would be liable as a joint tort feasor.
The difficulty, however, in holding the defendant liable upon this theory is the lack of evidence to support it. It does appear that the defendant, as a superintendent, overseer or foreman might have done, was on the work engaged, in assisting to carry out the contract and for that purpose he loaned his tools and gave up considerable of liis time, was seen conversing with the help, at times gave orders to the men, and had charged holes with dynamite. But, with respect to the blast which did the injury, there is no evi*155dence from which the inference can be drawn that he personally directed the amount of dynamite to be used or participated in placing it in the holes or took part in exploding it.
If liable at all, therefore, if must be upon the theory that he was the real and responsible contractor on the work, and from the form of the complaint as well as from the evidence introduced, we assume that this is the theory upon which the plaintiff principally relied.
There is no serious dispute about the facts, the principal evidence being given by the defendant, who was called as a witness for plaintiff. There was, as stated, proof that he attended upon the work nearly every day and to an extent supervised the workmen there employed; and also that the steam boiler, drills and most of the tools belonged to him. In addition it appears that moneys received from the work went into his bank account, and that therefrom sums were taken to pay the men. The defendant testified, however, that he was only occasionally on the work, and that he loaned his son the money to pay his men on the job, for which he obtained no compensation, never having received a dollar in connection with the contract except such amounts as were paid to him out of the moneys due upon the contract, part of which he received directly from the owners of the lots, and for which he receipted as contractor. It was testified by others also that he permitted himself to be introduced as contractor, and stated that he was such.
Were there nothing in the case but this evidence, then undoubtedly there would be a sufficient basis for the inference that the defendant was the responsible contractor. There is, however, other evidence, for it appears that the written contract to do the work was made by Burns with the defendant’s son, William J. Dempsey, who made the application to the bureau of combustibles for the permit to proceed with the blasting, and who filed a bond of indemnity in the sum of $5,000, conditioned for the payment of any loss, damage or injury resulting to person or property by reason of handling the explosives, and that the permit itself was issued to “ Win. J. Dempsey, Contractor.” In addition, we have the defendant’s testimony that he did not know that his son had taken the contract until after it was executed; that he had never had any conversation with Mr. Burns about this contract before it was made, and that be had no pecuniary interest in it whatever. The fact that *156subsequent to the making of the contract by the defendant’s son with Burns, the defendant took an active interest in it and permitted the use of his tools, and at times went upon the work and directed the men, was not unnatural in view of the relations between the parties and the interest which the father, who was more experienced, would take in the successful prosecution of his son’s contract. In the face of this written evidence we do not think the contention can be supported that the son and not the defendant was the legal and responsible contractor upon the work, nor that, if the son were sued, he could shield himself from liability behind his father.
Ho doubt the plaintiff was misled by appearances as to who was the responsible contractor, yet as the contract was in writing, as was the application for the permit and the bond of indemnity, an examination of these, or at least of the permit itself, which was easily obtainable, or inquiry from the parties, would have disclosed who was directly responsible as contractor. We think, therefore, that in view of the evidence as to the one who procured the contract, and who was legally responsible for the execution of the work, it would be going further than the authorities would justify to hold that upon the theory of a contractual obligation the defendant was liable for the injury to plaintiff’s building.
We have not overlooked the fact that objection was made to the introduction in evidence of the written contract and the permit, but we think the learned judge was right in overruling the objection. These papers were competent and material as tending to show who was the actual contractor upon the work.
It should be remembered that this is a suit in equity for an injunction and damages, and tire most favorable view of the evidence for the plaintiff would be to hold that upon the disputed question of who was the real contractor,'the conflict was to be determined by the trial judge as one of fact and not as one of law. It is, therefore, unnecessary for us to hold as matter of law that the defendant was not liable as contractor, because, viewed as a question of fact presented upon conflicting evidence, it was for the learned trial judge to determine thü question of fact, which, as shown by Ms finding, he has done in favor of plaintiff. This finding not being against the clear preponderance or weight of evidence, we should not disturb it.
*157We think that the judgment appealed from should accordingly be affirmed, with costs.
Van Brunt, P. J., and Laughlin, J., concurred; McLaughlin and Patterson, JJ., dissented.