I concur in -the reversal of the judgment, although not precisely for-the reasons stated by Mr. Justice Laughlin.
In the first place I consider that "the complaint states a cause of action for negligence and nothing else. It was.Upon that construction of the complaint that. the sufficiency' of the defenses were considered upon the .former appeal to this court (77 App. Div. 310), and the cause was-tried and-submitted to the jury as an action for negligence.
But whether considered- as an action for -negligence or' for a nuisance the plaintiff didnot sliow any facts-entitling him to a judgment against the defendant. It was clearly shown-that -defendant neither built nor. occupied the-building. He owned the land upon which it was erected and he leased the land to one Sherry before the erection of the building.was commenced, -under a. separate-agreement- that 'Sherry should erect the building and that defendant should pay the cost thereof. The only negligence charged, or attempted, to-be proven, is that one of the skylights Upon the roof of the building was not fastened to-.the walls upon which it rested as securely as it ' might and should have" been fastened,-and the claim ¡is that this constituted negligence for which defendant is liable. In effect, the attempt to charge the defendant on the theory of nuisance is based on the same -charge of negligence. A nuisance erected upon private - property must be something inherently dangerous, and ¡constructed and maintained in violation of.the safety of others, ¡or as ¡stated by . Judge Earl, “ an unreasonable, unwarrantable or .unlawful -use of (one’s own ¡premises), so as to produce material --annoyance., inconvenience, discomfort or hurt- -to his -neighbor.” (Campbell v. Seaman, 63 N. Y. 568.)- A skylight upon the -roof of a'bn-ilding is-not per se unreasonable, unlawful or u-nwarrantablb, and it cannot, therefore, be considered a nuisance even if likely to become dangerous,' unlebs there 'he proof of negligence either in its ■ construction or *599maintenance. (Losee v. Buchanan, 51 N. Y. 476; Cosulich v. Standard Oil Co., 122 id. 118.) It follows that in order to sustain a recovery against the defendant upon any theory it is necessary to convict him of negligence arid as he has never been in possession of the building that negligence must be found with respect to the original construction of the skylight. It is sought to be found in the insecurity of the fastenings, and the question of defendant’s liability, therefore, resolves itself into the question whether or not he is to be held to have been negligent • in not discovering and preventing the use of an insecure means of fastening the skylight to the roof. Under the contract between defendant and his tenant Sherry, I much doubt if the former can be considered as the person who erected the building. He neither selected nor employed the architects and contractors engaged in its erection. The plans were subject to his approval, but it is not claimed that they were improper or defective, and the method of securing the skylight was a minor detail of construction not shown on the plans. The defendant is not to be held liable merely because he employed an architect, for his own protection, to see that the structure was erected according to the plans ( Weber v. Buffalo R. Co., 20 App. Div. 292; Duerr v. Consolidated Gas Co., 86 id. 14), nor because he paid the cost of the building.
In Miller v. N. Y., L. & W. R. R. Co. (125 N. Y. 118) the lessee of the land built an embankment so negligently that the sand and debris were washed down upon plaintiffs land to his injury. The cost of erecting the embankment was paid for by the lessor.
In an action against the latter it was said, as might well be said of the present case : “The lessor cannot be made.liable for these damages because it was bound under the lease to issue to the lessee its bonds for the cost of any work chargeable to construction. The work was nevertheless the work of the lessee. It did the work in its own way and the lessor had no control thereof. In doing the work, the lessee was in no way working under the lessor, and in reference thereto, the lessor was in no way the superior of the lessee in such, a sense that it was bound to respond for the acts of the lessee.”
Even if defendant were to be regarded as the person who erected the building, still no case was made imputing negligence to him. *600The method of fastening the skylight was, as has been said, a minor detail of construction, of any defect in which it is not claimed, that defendant had knowledge ór notice, and of the general competency and skill of the architects and contractors no question is raised.
For their-default in the method of doing the work the defendant is not liable. (Burke v. Ireland, 166 N. Y. 305.) Upon no ground, therefore, can negligence be charged against the. defendant, and, since he is not chargeable for erecting a nuisance, unless he was guilty of some negligence in respect of it, the action against him must fail under any construction of the complaint, which should have been dismissed.
McLaughlin, J., concurred.'
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.