The plaintiff, on the 21st of October, 1909, was in the employ of the Andrew J. Eobinson Company, which had a genera] contract for the construction of a building at the southeast corner of Fourth avenue and Twenty-seventh street in the city of blew York. It had sublet to the defendant in this action the structural ironwork on the building. The brickwork had been carried to the seventh floor, and on the day in question the plaintiff was at work on a swinging scaffold outside of the building, laying brick, when he was struck on the head and injured by an iron bolt which came from some of the floors above. The structural ironwork had been carried to the twelfth floor, and some of the employees of the defendant were engaged at the time in question in that work. At the trial it appeared there were several other contractors engaged in doing work above the seventh floor—fireproofers, concreters, carpenters, centermen and finishers, beside the structural ironworkers; The plaintiff endeavored to prove that none of the other contractors in • the work in which they were engaged used bolts similar to the one which fell, and that defendant in this action in its work did usé bolts of this character. This evidence, however, was all excluded, and in this respect I think error was committed, but such error was harmless, because if such evidence had been admitted, I do not think the plaintiff then would have been entitled to recover. There *18is absolutely no proof as to where the bolt came from, except that it came from above where the plaintiff was at work. No proof as to who put it in motion or how it came to fall was given.
As I understand the decisions, they are to the effect that where a person is injured by an object falling from a building .in the course of construction, upon which different contractors are engaged in doing work, in order that the injured person may recover he must prove that one of the defendant’s employees set the object in motion or else establish that nobody, but.the defendant’s employees could have done so under the circumstances. . (Wolf v. American Tract Society, 164 N. Y. 30; Jack v. McCabe, 56 App. Div. 378; Wurthlee v. Concrete Steel & Tile Construction Co., 107 N. Y. Supp. 101; Hesselgrave v. Butler Bros. Construction Co., 101 id. 103.) Tested by this rule, I think the complaint was properly dismissed. All the plaintiff proved was that three of the defendant’s employees were working above him at the time of the accident and that the bolt fell from some place above; that similar bolts had been seen in the ironwork of the defendant some time before. There is no proof that the defendant’s employees at the time were handling bolts.
The case, in principle, cannot be distinguished from those cited, and especially the Wolf and Jack cases.
The plaintiff relies on several cases, the principal one being O’Rourke v. Waite Co. (125 App. Div. 825) where this court held that the defendant was liable. There, a piece of iron fell from above and injured the plaintiff. But in that case there was testimony to the effect that prior to the accident several objects had fallen from the floor where the defendant’s employees were at work—among them being pieces of iron like the one which struck the plaintiff, and that' at the very moment when the piece fell which struck the plaintiff, defendant’s foreman shouted “ look put below,” and that the other contractors were working on the floors above where there were no pieces of iron which could have dropped. While here, there were four or five stories between the plaintiff and defendant’s employees, from which an iron bolt could have been kicked or dropped.
For these - reasons I am unable to concur with the other *19members of the court in reversing the judgment and directing a new trial. I think the judgment is;right and should be affirmed.
Determination, judgment and order reversed, and new trial ordered, costs to appellant to abide event.