[Vol. 31. FOURTH DEPARTMENT, JUNE TERM, 1898. * * * me I went over there and saw them. Can't say where the noise came from; it sounded like iron. The first thing I saw after I heard the noise was Purdy and Jehle lying there. I saw a piece of iron near the bodies when they laid it out. It looked like a thumb screw, only bigger. I do not know what the name of it is; some one called it 'old man' round there; I have heard it spoken of as old man.' It looks like a heavy steel tool. elevator is one that is called the freight elevator.” * * * The In the course of his cross-examination he said: "One of the men working up above was sitting on a beam. May be it was a board right up above. I didn't exactly look at what he was doing, but I saw him there. I think there were two of them. When I say that we were in the elevator at the time that these men got hurt, I mean on top of the elevator, on top of the platform. The whole five of us were there; but we were not inside the elevator, that is, not inside the cage, and all at once something fell and the two men were killed." * * * Brunner, the foreman of the Jewett Manufacturing Company, was called as a witness and testified that he was present and saw the accident. He testified: "I did not notice what was being done upon this elevator in question before I took possession of it with my men. The dimension of the piece of refrigerator top that we were taking up was 7 by 9 feet. When we loaded on this piece of refrigerator the elevator was in the basement, on a level with the main floor. When we laid this piece on Purdy was away in on the inside of the elevator near the wall, and Jehle was near to the door. Just at that time I heard a kind of a noise. I happened to look up and saw this piece of iron and jumped back out of the way. When I saw the men they were just sitting on a beam extending across the shaft diagonally, about 10 or 12 feet above the tenth floor * * * that is, direct over the elevator that we were working on. When I was helping the men out I saw not * * * * only this thing called an old man' but the bolt; saw them both at the same time." At the close of the evidence the defendant moved for a nonsuit on the grounds "That the evidence does not tend to show any cause of action against the defendant, and no negligence on the part of the defendant is shown causing or contributing to the accident," App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. and "on the ground that it appears that the accident was due to the negligence of the employees of some other party and not of the defendant at all." The motion was granted and the plaintiffs excepted. Frederic H. Pomroy, for the appellants. John C. Milburn and Louis L. Babcock, for the respondent. HARDIN, P. J.: According to the evidence given in the case in hand the defendant had not accepted the building from the contractors who were engaged in constructing the building under a contract with the defendant. The defendant had not accepted the building or offered it to the public for use. True, it had commenced making leases to tenants of sundry portions of the building, and the tenants were engaged in the process of fitting up the portions rented of the defendant. When the Jewett Manufacturing Company took the contract from the Ellicott Club to furnish the club rooms, the Jewett Manufacturing Company and its servants and employees knew that the building was incomplete and that the defendant had not accepted it, and that the control of the building was in the hands of Jonathan Clark Sons & Co., the contractors who were engaged in the process of constructing the building. That condition appears to have been well understood by the Jewett Manufacturing Company and inferentially by the employees of the Jewett Manufacturing Company, including the deceased. The learned counsel for the appellants calls attention to Sterger v. Van Sicklen (132 N. Y. 499). In that case the plaintiff went to the defendant's house, not at the occupant's invitation or on a matter of common interest, and on coming out one of the steps broke and she received the injuries complained of, and it was held that no case for recovery was made out by the evidence. That case does not sustain the contention of the appellants. It is also contended in behalf of the appellants that "it was the defendant's duty to exercise reasonable care in maintaining the premises and the means of entrance and departure at all times in such condition that others entering their building upon business APP. DIV.-VOL. XXX7. 44 FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. might enter and depart with safety," and cases are cited in support of the general proposition thus contended for. However, the evidence in the case in hand indicates that the defendant was not in possession of the property in the full, broad sense included in the assumption made by the argument just mentioned. On the contrary, the defendant had contracted for the construction of the building, and that construction had been given out to Jonathan Clark Sons & Co., and they were constructing the building and were entitled to control its management and the manner in which it should be used. Besides, it was an independent contractor having a right to control the property. (Neumeister v. Eggers, 29 App. Div. 385.) The defendant was required to use reasonable prudence and care to keep its premises in such condition that those who visited it would not be unreasonably or unnecessarily exposed to danger. In Hart v. Grennell (122 N. Y. 371) it was said: "The law, however, does not require warranty of the safety of those coming upon their premises. A merchant may place in his store the usual and proper appliances for conducting his business, and when placed in full sight, and not so as to threaten danger, the merchant is not liable for injuries to a visitor occasioned thereby." In the case in hand it is made clear by the evidence that the John C. Jewett Manufacturing Company was aware that the defendant's building was incompleted and that the elevator and its appendages were approaching completion, and the foreman of the John C. Jewett Manufacturing Company testifies that he was aware that people were at work on the indicator at the time he attempted to load the refrigerator upon the deck of the elevator. So far as the evidence discloses, the workmen upon the indicator were employees of independent contractors for whose acts of negligence the defendant is not responsible. They were not in any just sense employees of the defendant under such circumstances as to make the defendant liable for their acts of negligence. (Ferguson v. Hubbell, 97 N. Y. 507.) In King v. N. Y. C. & II. R. R. R. Co. (66 N. Y. 181) it was held that " An owner of real property is not liable for injuries resulting from negligence on the part of a contractor or his employe engaged in performing a lawful contract for specific work upon the premises. The law will not impute to one person the negligent act of another App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. unless the relation of master and servant exists." (Engel v. Eureka Club, 137 N. Y. 103.) The evidence in this case shows that the use by the John C. Jewett Manufacturing Company, and its employees, of the elevator was not the ordinary use of an elevator in a completed building under conditions which impose upon the owner the duties and obligations. which are asserted by the appellants. The situation was patent and visible to the deceased as well as to his immediate employer, the John C. Jewett Manufacturing Company. When the John C. Jewett Manufacturing Company borrowed the use of an elevator, they borrowed the use of an incomplete, unfinished elevator, knowing that there was no guard or protection to prevent the tools or materials that were being used by parties at work on the indicator from falling down the well upon persons who should venture inside of the well in or near the basement. The circumstances surrounding the building quite negative any obligation on the part of the defendant to furnish a fully-equipped elevator. The evidence fails to present a case of negligence on the part of the defendant, the corporation, causing the injuries complained of. If the evidence indicated that the defendant had opened its elevator to the public, induced or influenced the public, or the deceased as a part of the public, to use it under the ordinary assurance that the elevator was safe and suitable for use, a different case would be presented from the one now in hand. Undoubtedly the law is quite stringent in respect to the liability of parties operating an elevator for hire or for accommodation of the public, but the condition in which the defendant was situated its relation to the uncompleted building and the uncompleted elevator, and its appendages― distinguish this case from the ordinary case arising where the liability of an elevator company, or of the proprietor of the elevator is asserted. We fail to find any proper predicate for sustaining an averment of negligence against the defendant in the evidence in this case. We must, therefore, sustain the nonsuit. All concurred. Judgment affirmed, with costs. 31 348 $161 640 FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. In the Matter of the Appraisal of Property under the Act of Tax- Transfer tax taxes assessed against the decedent and levied upon and paid from the estate are to be deducted by the appraiser — testimony of a beneficiary as to communications with the decedent when an exception to the exclusion of evidence is not a prerequisite to a review — effect of chapter 908 of 1896. In the appraisal of property taxable under the Transfer Tax Act (Chap. 483, Laws of 1885, and the acts amendatory thereof), the appraiser should deduct taxes levied subsequent to the death of the decedent, under an assessment made against the decedent prior to his decease, and paid by the executor from the estate. At the hearing before the appraiser upon the question whether the decedent The change made in the law as enacted in chapter 399 of the Laws of 1892, by APPEAL by John Maynard Brundage and another, legatees under the will of Benjamin C. Brundage, deceased, and by John Maynard Brundage, as sole executor of the will of said deceased, from an order and decree of the Surrogate's Court of the county of Allegany, entered in said Surrogate's Court on the 13th day of January, 1897, assessing, fixing and determining the tax upon the property of Benjamin C. Brundage under the Taxable Transfer Law, and also from an order and decree of said surrogate entered in said Surrogate's Court on the 10th day of September, 1897, affirming in all respects the said order and decree of January 13, 1897. On the 9th of December, 1895, Benjamin C. Brundage died, |