Judgment affirmed, with costs. No opinion. Kelly, P. J., Jaycox and Lazansky, JJ., concur; Young and Kapper, JJ., dissent upon the ground that the complaint having been dismissed at the close of plaintiff’s case, upon this appeal the stipulation at folio 117 was sufficient to entitlé plaintiff to the inference that the act complained of was necessary in the performance of the work, and a part of it, for which the owner was responsible.