Second Department, April, 1911. [Vol. 144. the cable that was on it, and that if the cable had been taut T-4 would have been kept in position and would not have fallen forward. This criticism of the appellant was put before the jury upon the examination of Juve, who was likewise injured in this accident. "Q. (Continuing). Let me correct you, and ask you to refresh your recollection; when you first testified you told us that as soon as you got up there, you looked around, and saw that the angles were fouled with the gusset plates, didn't you? A. Yes, sir. I hollered down and told Johnson that. I told Mr. McIntyre that when I got those in these plates pulled together so they would fit, I was going to tell the foreman to let the cable slack, so that the thing would slide together. Q. You would not have done that if it would slide together without any necessity of telling him, would you? A. When it was Q. Suppose it had slid right together the minute you pulled the thing, you would not have signaled anybody anything? A. It did slide together. Q. Answer the question as I put it to you. If that thing had slid together when you put a bolt in, and bolted the plates in, you would not have signaled anybody? A. It could not go into place. Q. It could not go into place? A. No; no, without releasing the load. Q. It could not go into place without releasing the load? A. No. Q. Do you mean to tell me now, Mr. Juve, that if two pieces of iron, one is pushed up against another piece of iron, as you see these two (indicating) – A. Yes, sir. Q. And you take one away, that the other one won't slide into place past it? A. No, sir. Q. You do say that? A. I say it won't slide into place." Defendant's counsel: "That is all." By plaintiff's counsel: "Q. You told Mr. Marshall that it would not slide into place. Now, tell us why it would not slide into place? A. Because the load would hold it. Q. That is to say, if it were taut? A. It naturally is taut all the time. You have got a load on it. It is supposed to be taut all the time. Q. Please state why it would not slide in? A. Because the load would hold it; the load is what is attached to the falls. That is, attached to the cable. Q. What do you mean when you say that the load would have to hold it in place? I don't quite grasp that. A. It would stay right where it is at. Q. Do you mean the cable? A. If it stayed right Second Department, April, 1911. App. Div.] where it is at, the cable has to be taut and fastened. Then it would stay in its place." The Court: "The Court understands from the evidence that where the word 'load' is used, it means that the cable is supporting a burden. Q. Is that so, as the Court has indicated? A. Yes, sir." Moreover, the evidence is that directly after the accident the men injured were released from their position by the withdrawal of the T-4 apart from B-30 by the use of the cable. This seems conclusive that the cable at this time did physically control T-4. The criticism of the learned counsel rests upon the law of gravitation. Naturally T-4 would have come to a perpendicular if the section at its base was horizontal, and so presumably would have engaged B-30 when the foul was removed unless it was held back by some outside force. But the contention of the plaintiff was that the cable constituted the potential outside force, that was at hand to have controlled T-4 so that it might have been lowered into place gradually. Evidently the jury did not think that the theory of the plaintiff rests upon a physical impossibility, and we cannot find that their conclusion is opposed to physical laws. (See Fox v. Le Comte, 2 App. Div. 61; affd., on opinion below, 153 N. Y. 680.) The learned counsel for the plaintiff lays stress upon à statement elicited from Palmer upon cross-examination: "There would have been no use of our trying to hammer those things together if the cable had been taut." When asked upon redirect examination what he meant, the witness answered: "If the cable was taut you know it is no use to hammer it any because when you slack the cable it goes naturally." Palmer had just testified that if the cable had been taut, it (i. e. T-4) would not slip in. Palmer had been one of the men engaged in hammering, which he testified was a usual and often efficacious method. This testimony may mean that you could not hammer T-4 and B-30 together if the cable had been taut, because the cable would have held them apart, and this is consistent with the second statement that when you slack the cable it goes naturally. But it is not consistent with his own testimony and that of the other witnesses that you can release a foul by hammering and that then the cable is relaxed so as to let the two pieces gradually engage. Second Department, April, 1911. [Vol. 144. The notice is, I think, sufficient in that it states the physical cause of the injury, so that the master is informed "as to the particular thing or things out of which the injury resulted, so that he may make the necessary inquiries as to the fact and its attendant circumstances." (Valentino v. Garvin Machine Co., 139 App. Div. 142, and cases cited.) The judgment and order should be affirmed, with costs. Present- JENKS, P. J., BURR, THOMAS, THOMAS, CARR CARR and WOODWARD, JJ. Judgment and order unanimously affirmed, with costs. PEARL LIPSCHITZ, as Administratrix, etc., of MORRIS LIPSCHITZ, Deceased, Respondent, v. JOHN KOEPPEL and JAMES KOEPPEL (the Names "John" and "James" Being Fictitious, etc.), Copartners Doing Business under the Name of "KOEPPEL BROTHERS," Appellants. Second Department, April 7, 1911. Master and servant - negligence failure to establish relation. Action against the owner of a building under construction to recover damages for personal injuries. Evidence examined, and held, insufficient to show that the defendant, who was alleged to have given certain directions, assumed the relation of master to the plaintiff, who was in the employ of an independent contractor. APPEAL by the defendants, John Koeppel and another, copartners, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of January, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 18th day of February, 1910, denying the defendants' motion for a new trial made upon the minutes. F. Sidney Williams, for the appellants. Thomas J. O'Neill [Leonard F. Fish with him on the brief], for the respondent. App. Div.] Second Department, April, 1911. The plaintiff complained that her intestate was a servant of the defendants, who, as copartners, were "the owners and builders of the premises in the course of construction," and "as such supervised and controlled the construction" and "did the carpenter work" incidental to that construction; that the servant was injured in his employment by a fall due to the neglect of the defendants as masters to furnish a safe place, ways, works and machinery, reasonably to safeguard, to inspect and to keep safe the same, to employ a competent foreman and coworkmen, and due to the neglect of the defendants' superintendents of their duties. The defendants admitted the ownership of the premises, denied the other allegations of the complaint and alleged contributory negligence. The testimony to establish relationship of master and servant is meagre and ambiguous. A servant of the contractor for plumbing work testifies that the intestate was at work in the building, and another witness, who was seeking work at the time of the accident, testifies that he saw the intestate in the building cutting beams. In addition to this evidence the said workman testifies that he saw the defendants "going around, telling a man to do this, and telling a man to do that; all kinds of workingmen on the building;" but this testimony is weakened by his further statement that he had not heard the defendants "say anything to others, only in reference to what conversations one of them had with me." Although the witness then went on to say, "I heard them giving orders to the men," as he had theretofore said that he did not hear the defendants say anything, and as he thereafter added, "what the orders were I don't know," such testimony is subject to the criticism that it is inferential rather than direct. There is but the further testimony of the said witness who was seeking work, that when the intestate was on his knees at work one of the defendants came up behind him and yelled, "Why are you bothering around here so much; hurry up; hurry up; schnell, schnell." For the defense one of the defendants testifies that the work upon the building was all done by contractors (whose names were given on cross-examinaAPP. DIV.-VOL. CXLIV. 23 * * * * Second Department, April, 1911. [Vol. 144. tion); that the carpenter and framework were let out on contract to Glasser for $1,700, which was paid to him; that Glasser did part of the work, but afterwards sub-contracted with Kaplan and Krugman, who actually did almost all of the work; that neither he nor his brother ever did any carpenter work on the building; that he did not know the intestate, and that he never gave orders of any kind to any of the workmen. He offered to produce the checks paid to Glasser, but the court said to him that unless the point was seriously contested he need not do so. Glasser testified that he contracted to do all of the carpenter and framing work for $1,700, which was paid to him, but that after doing a part thereof he gave it over to Krugman and Kaplan. A contract in writing between him and Krugman and Kaplan was read in evidence. The stipulation on the record is that it was lost during the trial, but that it provided that Krugman and Kaplan should do all the carpenter work; that Glasser should pay them $1,490 in specified installments; that there had been some changes made in the contract in the amounts of some of the installments, and that such sum of $1,490 had been changed from some smaller amount. Glasser testified that he had paid the $1,490 to Krugman and Kaplan, and that the intestate was employed by Krugman and Kaplan. The other defendant corroborated his brother and Glasser. He denied that he ever gave any orders, testified that the intestate was employed by Krugman and Kaplan, and denied that he even spoke to the intestate on the occasion testified to by one witness for the plaintiff. The defendants' case is criticised in that it appeared that Glasser had presented a written contract prepared by him to the defendants which they did not execute. Their explanation is that they had at the time other bids; that they postponed execution until they had satisfied themselves of Glasser's responsibility and reputation, and that then they told him to proceed, without signing the contract. The presence and occupation of the intestate are entirely consistent with his employment by a contractor. The testimony as to the "orders" is not sufficient to establish that the giver of them was the master of the intestate, when weighed with the evidence adduced by the defendants. I may add that |