¶1I dissent. I agree that it was the duty of the landlord to keep the elevator in proper condition, and that he cannot shield himself, for a failure to perform that duty, behind a contract with someone else to perform the duty for him. If the accident in this case had resulted from any defect in the elevator or its machinery, the cases cited by Mr. Justice McLaughlin would be applicable. The case made by the proof, however, is one of negligent operation. For this the liability rests upon the person whose servant the operator was. He was not the servant of the owner, because the latter had no power to employ, discharge or direct him. For these reasons I think that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
¶2Laughlin, J., concurred.
¶3Judgment and order affirmed, with costs.