Defendants have properly been adjudged tort-feasors and are both liable to plaintiff._ The joint delinquency of defendants having been established, it is in the frame of their dealings with one another that we must look to ascertain whether the “ factual disparity” between their adjudged delinquencies (McFall v. Compagnie Maritime Belge, 304 N. Y. 314, 330) was so decisive as to warrant granting the landlord judgment over against the contractor. It is in such *443a setting that we can best determine whether the adjudication of landlord’s liability was simply the vicarious consequence of its nondelegable duty to its invitee, or whether it resulted from more affirmative acts of omission or commission.
Certainly, in painting the house and in securing the scaffold that was necessary to paint the house, the contractor assumed the primary responsibility. Its relationship with the landlord contemplated that the contractor exercise complete control over the manner of performance of the job and over the materials, brushes and appliances it used on the job. It was never contemplated that the landlord possessed the skill or resources to supervise or participate in the actual painting of the house or in the manipulation of the painting paraphernalia. So, if the rope that caused the accident had been defective or had been strung or located negligently on the roof, plaintiff’s injuries would have been caused by the negligent performance of that portion of the job which had been committed exclusively to the control of the contractor by the landlord. And in such event, the fault of the contractor, as weighed in the scales of defendants ’ relative responsibilities, would be so much heavier as to require it to indemnify the landlord.
But the accident did not occur for any of these reasons; nor does the record disclose any other manner or any other place in which the scaffold could have been secured to the side of the building with less risk to persons visiting the roof. The defendants’ negligence, as asserted by plaintiff, lies solely in their failure to take adequate safety measures to warn or protect invitees against the dangers posed by the properly installed rope. Reasonable precautions might have taken such form as placing barriers alongside the rope, or posting a sign on the door leading to the roof.
Of course, the contractor’s responsibility did not end with stringing the rope across the roof carefully and in accordance with sound practice. It owed the further duty of following through to safeguard persons lawfully using the roof against the hazards that had necessarily been created. This was undoubtedly part of the job that it had undertaken to perform on behalf of the landlord; but at this point the contractor found a partner to share its responsibilities. That part of the job requiring notice to invitees and proper safeguards in relation to the dangerous condition no longer remained substantially under the control of the contractor; nor was it preponderantly the contractor’s responsibility. It was also the landlord’s duty to keep the roof to which it invited tenants free from dangerous encumbrances. The landlord omitted to discharge a co-ordinate *444responsibility that was fully as fundamental as that resting upon the contractor; and therein lies the distinction between this case and the McFall, Tipaldi and other cases cited in the majority opinion.
We cannot on this record hold that the Trial Justice was not justified in finding that the landlord had ample notice — constructive though it was — of the dangerous condition, and that it failed to take requisite measures to protect its tenants. Defendants’ faults of omission may constitute active negligence (McFall v. Compagnie Maritime Belge, supra) and were the proximate cause of plaintiff’s injuries.
At the very least, it would appear that there was not such a factual disparity and delinquency as between defendants as to require rejection of the finding of the learned Trial Justice that both defendants were joint, primary tort-feasors.
The judgment should be affirmed in all respects.
Peck, P. J., and Cox, J., concur with Frank, J.; Botein, J., dissents and votes to affirm in opinion, in which Rabin, J., concurs.
Judgment modified in accordance with the opinion herein and, as so modified, affirmed. Settle order on notice.