(dissenting). I concur with Mr. Justice EAUGHÉIN in so far as he holds that the judgment dismissing the complaint against the steamship company should be affirmed, but I dissent from his conclusion that the judgment should be reversed and a new trial ordered as to the defendant Hammond. The facts, so far as they are material to him, are as follows: He was the owner of the lighter Excelsior, on which was a cargo of rosin, which was to be delivered alongside of a ship belonging-to the defendant steamship company. The lighter had a crew consisting of two men, employés of Hammond, whose duty it was to bring the lighter alongside of the ship and make it fast. On the 8th of May, 1900, these employés were in the performance of that duty, and the uncontradicted evidence is to the effect 'that they -were able to perform it without any assistance, and that they made no request for assistance from any one. Notwithstanding this fact, the intestate and other employés of the steamship company were directed by their foreman to go aboard the lighter, and assist in placing her alongside the ship. This was no part of their duty, which consisted in “slinging the barrels” of rosin from the lighter, after it had been made fast, onto the ship. In pursuance of this direction the intestate jumped onto the barrels of rosin which were piled on the deck of the lighter, and then jumped from there to the deck, and, as he did so, he stepped upon an iron grating covering a manhole in the deck, which turned, and he came astride of it, and was so injured that *299he died shortly thereafter. There was no dispute between the parties as to the construction or condition of the manhole. It was a round opening in the deck, used for ventilating purposes, into which was set an iron rim about 16 inches in diameter, having an iron flange or edge upon its lower part, of something like one-half an inch in width. In the rim was set an iron grating, which rested on the flange. It did not fit tightly. There was a play of about one-eighth of an inch all around between the outside edge of the grating and the inside edge of the flange. The grating was not fastened in any way to the rim, but could be lifted out as occasion required. There was also provided an outer iron cover, which was not in place when the accident occurred, but just when or by whom it was removed did not appear. There was no evidence to the effect that either the manhole, rim, grating, or cover were faulty in construction or that they were different from those used for a like purpose on similar boats. Nor was there any evidence that at the time the accident occurred any part of them was broken or out of repair, or prior to the time the intestate was injured that anything had occurred to indicate that an accident similar to the one which befell the intestate could possibly happen.
This being the situation at the close of plaintiff’s case, I am unable to see how the trial court could do otherwise than dismiss the complaint as to the defendant Hammond.
First. The defendant Hammond owed the intestate no duty. He was not in the employ of Hammond, but of the steamship company, and when he went aboard the lighter he did so,- not at the request of Hammond, but solely at the suggestion or by the direction of his employer. He was on the lighter, at most, by the implied sufferance or license of Hammond, and not by his invitation, either express or implied. The lighter, as already said, was manned with sufficient men to place her alongside, preparatory to the rosin being taken from her and put on the ship. No assistance was necessary for that purpose, nor was any requested. Nor do I think there was any evidence to go to the jury that it was customary, under such circumstances, for the employés of the steamship company to go on board •the lighters when they were being brought alongside. The defendant Hammond, therefore, was under no obligation whatever to protect one against injury who might voluntarily go upon the boat out of curiosity, or to further his own or his master’s business. Larmore v. Iron Co., 101 N. Y. 391, 4 N. E. 752, 54 Am. Rep. 718; Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594.
Second. But if it be held that Hammond owed the plaintiff’s intestate a duty to- provide him a reasonably safe place to do his work, when directed to go onto the lighter by the steamship company, even then it seems to me the plaintiff failed to establish a cause of action. To establish liability on the part of Hammond, the plaintiff was bound to prove that the manhole, rim, grating, or cover was, in the first instance, improperly constructed, or else had become defective and out of repair, and that the defendant had notice of such defects, or by the exercise of reasonable care could have discovered *300them. This proposition is elementary, and the citation of authorities is unnecessary. Here there was absolutely no evidence which would have justified a finding that there was any act of omission or commission on the part of Hammond in this respect. It is true the suggestion is made that the grating did not fit tightly in the rim, that there was a space of about one-eighth of an inch all around it, and that this may have been the cause of its tipping; but it seems clear this could not have been the cause if the grating was in place when the intestate jumped, and the flange was one-half an inch wide. Nor is it apparent how the outer covering could have had any effect upon its tipping, and, if it could, I do not see how that could be held as a negligent act so far as Hammond is concerned, because it appears that only a short time before the accident occurred this covering was in place, and when it was removed, or by whom, does not appear. The truth is, no one knows, so far as this record shows, just how the accident occurred, or what was the cause of it; and to have sent the case to the jury in the condition in which the evidence was at the close of the trial would have been simply to permit them to guess and speculate upon that subject, and possibly to infer from the fact that an accident had occurred that it was due to some omission of duty on the part of Hammond. This would have been insufficient to have sustained a verdict.
For these reasons I think the judgment should also be affirmed as to the defendant Hammond.
VAN BRUNT, P. J., and PATTERSON, J., concur.