(dissenting). This action was instituted by the infant plaintiff (herein called plaintiff) for personal injuries alleged to be caused by defendants’ negligence, and by bis parent for loss of services and medical expenses. After three days’ trial, the jury returned a unanimous verdict of $5,000 for plaintiff and $500 for his father against all four defendants who, by the terms of the verdict, were found “ equally guilty of negligence.” Defendants appeal.
Plaintiff, a boy of eleven, claimed that on August 18, 1936, about two p. m., while he was on the sidewalk in front of premises 320 East Eighty-third street, Manhattan^ there were bags of building material, consisting of small pebbles used for terrazzo work, piled upon the sidewalk; that some of the bags were open, permitting the contents to seep or flow out upon the sidewalk; that while plaintiff was picking up some of the pebbles, one of the piled bags slipped off the pile and struck plaintiff, causing a fracture of the left tibia and injury to his left knee.
Defendant Bank for Savings, owner of the buildings contiguous to the sidewalk where the accident happened (hereinafter called owner), had employed as general contractor defendant Merola *639Bros. Construction Corp. (hereinafter called general contractor) to make substantial alterations for the agreed cost of $53,446. The general contractor employed defendant Cerussi Marble & Tile Company, Inc., as subcontractor to do certain tiling, terrazzo and other work in the alteration contract. Cerussi subcontracted the terrazzo work to defendant New Deal Terrazzo Company, Inc,
Ordinarily, one who employs an independent contractor is not hable for bis negligence, but an exception exists where the work within the contemplation of the parties is inherently dangerous. (Rohlfs v. Weil, 271 N. Y. 444; Boylhart v. DiMarco & Reimann, Inc., 270 id. 217.) A contract made by an owner of real estate with a contractor involving alterations within a building may not be, as a matter of law, a contract that necessarily involves work inherently dangerous to pedestrians on the sidewalk. Such alteration work may be carried on without piling any building material on the sidewalk. Whether danger is inherent in the work and should be reasonably anticipated is a question of fact. (Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303.) Here the evidence indicates that the defendant owner knew material was placed on the sidewalk and was piled there in a way from which a jury might find that danger to persons lawfully using the sidewalk was reasonably foreseeable.
Among the exhibits at trial presented for the consideration of the jury was the alteration contract between defendant owner and general contractor, providing:
“ Permits. The contractor shall obtain all permits and licenses necessary; give all legal notices and pay all fees relating to work covered herein. Such permits shall be filed with the owner’s architect.”
During May, 1936, the general contractor secured three permits covering a period of ninety days, authorizing the placing of materials in the gutter not more than six feet out from the curb; two such permits authorized placing building material two feet on the sidewalk adjacent to the curb. The owner’s contract required that such permits be delivered to the owner’s architect; there was no proof they were not so delivered; and the owner knew the material was on the sidewalk.
A police officer and plaintiff’s father testified that both had seen bags piled on the sidewalk a number of days before the accident. The police officer stated that the bags had been so piled for about a week prior thereto, that they partially obstructed the sidewalk, and that several of them had broken open. William Munro, inspector for the owner, was at the premises practically every day *640to see that the plans and specifications were carried out, and he “ checked up on the work that was being done.”
Photographs, taken by the infant’s father on the day of the accident within a few hours thereafter, show many bags of building material piled upon the sidewalk in violation of the permit in that the bags were not piled within “ two feet on sidewalk adjacent to curb ” but much farther from the curb. This constituted a nuisance as an unauthorized obstruction of a public sidewalk. (Mulvey v. City of New York, 114 App. Div. 526.) The claimed negligence on which the case was submitted to the jury arose out of such nuisance. Both the father and the police officer testified the pictures presented a fair representation of the piled material and its situation on the sidewalk as of the time of the accident. Accordingly, they were properly received in evidence.
An officer of the general contractor was at the premises during the progress of the work, supervising it and, although he denied that the bags were piled on the sidewalk as claimed by plaintiffs, he admitted that the piling of bags, shown on plaintiffs’ photographs, was “ á dangerous condition.”
Evidence by the bank’s inspector, Mr. Munro, permits the inference that the terrazzo work, which was to be done originally by Cerussi, Inc., was started about August fourteenth or fifteenth. The general contractor said it began about August sixth. The storing of the building material on the sidewalk several days or a week before the accident gave notice of the dangerous condition to the subcontractor, Cerussi, whose officer testified on an examination before trial that he supervised the terrazzo work, though he denied this on the trial.
The New Deal Company which did the terrazzo work was, on the evidence, properly found by the jury to have begun such work prior to the date of the accident and must consequently have known of the incumbrance of the sidewalk with the building material and its alleged dangerous condition.
All of such evidence permitted an inference by the jury that the work in its progress, to the knowledge of the owner, contemplated piling the building materials in these bags upon the sidewalk; that the bags were so piled as to be dangerous to persons using the sidewalk; and that the owner and all the other defendants had actual notice of the dangerous condition and did nothing to correct it, although notice was received in time to do so. On the evidence in this record, it cannot be said that the result was so extraordinary as to be beyond the reasonable probable consequence of the negligence charged. (See Restatement of Torts, Negligence, §§ 433, 435.) The jury, sole judge of the credibility and weight of the *641testimony, gave credence to the version of plaintiffs and their witnesses. The issue of liability of all defendants necessarily was a jury risk. (Rosenberg v. Schwartz, 260 N. Y. 162, 166; Delaney v. Philhern Realty Holding Corp., 280 id. 461, 467; Rohlfs v. Weil, 271 id. 444, 448.)
It is claimed that the trial court took from the jury the issue of whether the work was inherently dangerous. Considering the charge as a whole, I think the court left that issue to the jury. In its main charge the court instructed the jury that if any one causes obstruction to the sidewalk or places material on it, it is his duty to see “ that it is done in such a manner that it will not unreasonably cause any injury or damage either to the pedestrian or to the person having any business upon the sidewalk;” that if the infant plaintiff by some act on his part created the opening in the bags and thereby weakened the structure within a short period of time, he could not recover; that before plaintiff could recover he must establish “ that the defendants or some or all of them were guilty of negligence, that this material was maintained on the sidewalk in a negligent manner; * * * that the condition existed, that is the piling of the bags was there for such a length of time that the ones responsible for having them there and the ones who would be responsible for keeping the sidewalk reasonably safe would have an opportunity to take them away, or if they were piled in an unskillful or negligent manner, to correct the piling provided it was done by some one other than themselves;” that unless the jury found the three elements, “ negligence of the defendants, freedom from contributory negligence on the part of the plaintiff, and the notice of the existence, the plaintiff cannot recover.”
The owner’s trial counsel asked the court to charge that the owner should not be liable unless it was guilty of an affirmative act of negligence. That was not a request to have the jury determine as an issue of fact whether under all the circumstances the work was inherently dangerous. The general contractor in its brief before this court admits the court left that issue to the jury. At trial all parties seemed to assume that. Indeed, among the very last charges made by the court to the jury, passing upon a request of the owner’s counsel, was a charge that the use of the sidewalk to provide the necessary materials and the piling of the materials on the sidewalk “ is not of itself negligent. It is only negligent when it is not maintained in a propet and skillful manner taking into consideration the facts and surrounding circumstances, principally if it is a public throughfare.” Any error in the statement in the main charge about putting the materials on the side*642walk in a congested locality being inherently dangerous, was removed by this subsequent charge, clearly leaving the issue to the jury as an issue of fact. To that last charge the owner’s counsel took an exception, thereby indicating that the court should have charged that issue as a matter of law in defendants’ favor instead of leaving it to the jury, as it did, as an issue of fact.
When all the facts are considered, the court did not permit imposition of vicarious liability without any basis for it. The court explicitly charged that if plaintiff, by some act of his own, caused the opening in the bags to be created and thereby weakened the pile, and if this happened within a short period of time, he could not recover against any defendant. The court repeatedly charged that plaintiff would have to show that the material was maintained on the sidewalk by defendants in a negligent manner and that defendants must have notice of the dangerous condition for such a length of time as to enable them to correct it; and that unless the jury found defendants guilty of such negligence and notice of the existence of the condition, plaintiff could not recover. The necessity of notice was emphasized by being repeated four times in the charge. There was evidence of such notice against all defendants, including the owner whose representative inspected the work daily.
Finally, the trial court expressly instructed the jury that it should indicate which of the defendants they found guilty of negligence, and stated he was doing this because of the cross-claims of some defendants against other defendants —- which he did not. submit to the jury. In returning the verdict for plaintiffs, the foreman, obviously in answer to that request, explicitly stated that the jury found “ all four defendants equally guilty of negligence.” For this reason, I think the court correctly refused to direct any recovery over. The indemnity agreement between the general contractor and the owner was not an insurance contract and did not indemnify the owner against its own negligence. (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36.) Under the evidence adduced, the owner and the general contractor were here held liable solely for failure, on notice, to correct the dangerous condition; here the general contractor was not the active wrongdoer and accordingly Dudar v. Milef Realty Corp. (258 N. Y. 415) is not controlling. Although the New Deal Company admitted delivering the terrazzo pebbles to the premises and telling the men to unload them, it denied piling the bags on the sidewalk, and there is really no proof in the record specifically showing who piled the bags on the sidewalk in the dangerous manner in which the jury found they were piled. Hence it cannot be said that the jury found that the New *643Deal Terrazzo Company, Inc., was the primary, active wrongdoer. In any event the express finding that each of the defendants was “ equally ” guilty of negligence precluded such finding. I think, therefore, on the particular facts and the verdict herein that the trial court properly denied all application for recovery over between defendants.
The testimony and the exhibits, if. accepted by the jury, support the unanimous finding that the proximate cause of the accident was the negligence of all four defendants equally causing or contributing to cause the accident and the injury. No prejudicial errors were committed in the rejection or reception of evidence. The charge when considered in its entirety is without prejudicial reversible error.
Accordingly, to the extent indicated, I dissent and vote to affirm the judgment appealed from, with costs.
Judgment in favor of the plaintiffs and against the defendants affirmed, with costs. Judgment in favor of defendants Merola Bros. Construction Corp. and New Deal Terrazzo Company, Inc., against defendant Bank for Savings in the City of New York dismissing the cross-claims reversed and judgment directed for said bank on such cross-claims. Otherwise, judgment affirmed. Settle order on notice.