This was an action brought to recover for injuries resulting, it was charged, from the negligence of the defendants. On the 6th of October the plaintiff, while walking along Third avenue, between Sixty-Seventh and Sixty-Eighth streets, in this city, was thrown down by the turning of loose boards which had been substituted for the sidewalk. At the time of the accident the defendant was the contractor for the erection of buildings at the locus in quo. The flagging had been removed from the sidewalk, and trenches had been made therein for pipes, which had been filled, leaving the earth rough and uneven; and boards had been placed along what, when finished, would be the sidewalk. They were not fastened to the earth, and had no stringers or supports under them. The owners of the land had made a contract with the respondent, which called, on his part, for mason, carpenter, and iron work shown on the specifications, and by general drawings. He was to do all the digging, cesspools, trenches, closets, etc., as shown on the plans, also all flagging, with earth well rammed, soaked, and made solid, to flag the sidewalks, and to make good pavement of adjoining premises, and to be responsible for accidents to individuals. Indeed, the contract in that respect is that he is to be responsible for his own acts, or those of any of his workmen, from accidents to the buildings, to individuals, or to the property *464of others, until the work should be fully completed and accepted. Other persons were engaged, as well, by the owners, to do certain parts of the work. One Dugan, who dug out the cellars, and a plumber named McCreery, seem to have had separate contracts affecting the locus in quo; and the question was, therefore, in limine, who was in possession of the premises at that time. The testimony does not establish beyond doubt and beyond conflict, therefore, which of the three persons named had possession or charge of the premises at the time the accident occurred. That they were all connected with the possession and charge of the premises, there can be no doubt. Whether the cellar digger, Dugan, had fully discharged his duties in reference to the cellar at the time of the injury, was necessarily one of the questions presented by the evidence, for the reason that the planks spoken of, and which occasioned the injury to the plaintiff, were put in the place in which they were found by direction of the architect employed by the owner, who stated, among other things, that he made a contract with Dugan for the digging, and also that there were contracts with him as architect,—one to excavate, another to do the mason and carpenter work, and another to do the trenching in the sidewalk, and get pipes into the house,—and that work on these different departments progressed during the erection of the house. At different stages of the work, there were planks on the sidewalk. In the beginning, when Dugan came there,-he had some planks on barrels, and he ordered them put on the sidewalks. He says the trenches made were open when the defendant was building one side; that one trench was running in the center of the six houses. Each two houses had a trench. He further stated that the plumber came in at the same time that Dugan did; that Dugan owned the planks, but he was unable to say whether there were planks on the sidewalk on the 6th of October; and that he had charge of the sidewalk for the owners from the time he got the contract, and was there every day. He further said that nothing was done by defendant on the sidewalk until frost set in, after October 6th, when he ordered the sidewalk down, and the defendant put down the flagging. The defendant had a watchman, and no one else had, although he said he understood the plumber was to pay the watchman for being there.
This statement is quite sufficient to show that the question of possession was an important one, assuming the legal rule to be that the person in charge of the sidewalk under the contract with the owner was the person who was responsible, and this question becomes the more formidable, with regard to the defendant, in view of the provisions in the contract that he was to be responsible for accidents in his department; for, if in possession of the premises, it was in his department, upon which subject the fact that he had a watchman there had an important bearing.
When the evidence was finished, the defendants’ counsel renewed his motion to dismiss the complaint—First. Upon the ground of a total failure of proof to sustain the cause of action alleged in the complaint, or any cause of action. Second. Upon the absence of any proof to show that the defendants, or either of them, interfered in any way with the sidewalk where the plaintiff fell; that they excavated it, or removed the flagging, or placed any boards on it. Third. Because there is affirmative proof on behalf of the plaintiff that the defendants, and neither of them, did do such things, but that the flagging was removed by somebody else before the defendants commenced their operations on the buildings. Fourth. Because, from the plaintiff’s own testimony, if she was hurt at the time and place she stated, she has been guilty of contributory negligence. The court granted the motion, to which ruling there was an exception. The plaintiff’s counsel asked to go to the jury on the question of possession and charge of the premises. The motion was denied, and exception was taken.
This was an erroneous ruling, for the suggestion just made, namely, that that was really the important issue in the case. If an excavation is to be made, *465it is the duty of the person making it to see that it is properly and carefully covered, so as to make the street as safe for passage as before, and the obligation to keep it safe devolves upon any person who subsequently continues it in an improper or unsafe condition; and notice of a defect which could be discovered by proper examination is not necessary in order to fix this liability. Irvine v. Wood, 51 N. Y. 224; Wolf v. Kilpatrick, 101 N. Y. 146, 4 N. E. Rep. 188. It follows from these authorities that if the other contractors had performed their different contracts, and left the premises necessarily in the possession of the defendant whose contract was in force, the responsibility for the safety of the public devolved upon him, whether the planks were properly or improperly laid down in the first instance by Dugan or by the plumber. It seems to be very clear, therefore, that the question of possession should have been submitted to the jury, and that the dismissal of the complaint was erroneous. The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event.