{concurring.) The plaintiff encountered a fall, from which she sustained painful injuries, on the 6th of October, 1885, while walking along the sidewalk on the west side of Third avenue, north of Sixty-Seventh street. Buildings were then in process of erection by John D. Karst, Jr., under a contract with the owner of the property. This contract was made on the 17th of August in the year 1885, for the erection and finishing of six buildings, which by the agreement were to be finished by the 1st of January, 1886; and the work was to be commenced within five days after the execution of the contract, and the proof indicated that it was commenced within or about that time. But prior to the commencement of the erection of the buildings the flagging upon the sidewalk had been taken up by John T. Tripler, and after that Martin M. Dugan excavated the grounds for the buildings,- and the removal of the earth and other material therefrom. Three trenches were also excavated across the sidewalk; each two of the six houses on the ground having one trench. They were of the depth of from seven to thirteen feet below the grade, and they were opened to put down sewers, gas, and other pipes; and it was stated that they were dug by Mr. Dugan, which, however, in his own evidence, he denied to be the fact. When the pipes were laid, the trenches were filled up, but the sidewalk was not restored to its former condition. It was covered With loose boards or plank, and these boards were stated to have been placed there by Dugan, which he himself denied having done, but that he laid planks over the drive-way where he crossed to remove the "earth from the excavations.
The plaintiff, in walking along the sidewalk, in the early part of the evening, but after it had become dark, by the tilting or moving of these boards, as the result of the uneven condition of the walk, was thrown down, and seriously injured; and it was for that injury this action was brought by her. And it was for the reason that the court considered the defendant John D. Karst, Jr„ not responsible for this condition of the sidewalk that the complaint was finally dismissed. But by the specifications, which were made a part of his contract, he, as the mason to whom the erection of the buildings had been let, was obligated to do all the digging for the trenches; and there is, accordingly, reason for believing that, in the opening and filling of the trenches, the persons doing that were acting for him, and under his authority. He was also required by the specifications to do all filling in, to be done with earth well rammed, soaked, and made solid. And, by a further part of the specifications, not only the trenches themselves, and their filling in, but the laying of the sidewalks, were portions of the work to be done by him; and he was also bound, at his own cost, to provide all manner of materials, labor, etc., for the due performance of the work. And it could be inferred; as these were no parts of the contract with or employment of Dugan, that *466what he or his men may have done, if they did anything, in the excavation of the trenches, filling them in, and laying the boards, was for the defendant, and in his employment, since this walk was included within the work to be done by him, and the boards or plank had been there for such a length of time prior to the accident as reasonably to have apprised him of their condition. The facts were such, although they were controverted by other evidence, as would commit this as a proper subject for the consideration of the jury. Beyond that, he had a watchman employed to look after his work, as well as the materials upon the premises. Such a degree of probability was indicated as would leave the jury at liberty to conclude that he was responsible for this condition of the work; and, if he was, they might very well find that it had been placed not only in an unsafe, but a careless and negligent, condition.
The evidence of the plaintiff and of the policeman, who had frequently observed the vicinity, was sufficient, also, to justify the jury in believing that there was no fault on plaintiff’s part contributing to the accident. It is true that the evidence as to these facts is fragmentary in the extreme. It was presented in the most incoherent manner, and without any system which would enable the court or the jury to appreciate its force or effect. But the plaintiff should not be made the sufferer because of the irregular manner in which her interests or rights were presented upon the trial. The case, on the contrary, should have been submitted to the jury; and the judgment, so far as it is in favor of the defendant John D. JCarst; Jr., should be set aside, and a new trial directed, with costs to the plaintiff, to abide the event. But, as to the other defendant, there was no evidence connecting him with the cause of the accident, and the judgment in his favor should be affirmed.