¶1I concur in the conclusion of Mr. Justice Laughlin, except as to the fourth defense. I do not think, however, that where new matter is pleaded as a separate defense to the action, and there are repeated as a part of that defense denials of allegations of the complaint which have no relation to the new matter pleaded, the court is prevented from determining upon demurrer whether the separate defense as a whole is sufficient in law upon the face thereof. Each separate defense must be taken as a whole, and if the facts alleged are not sufficient as a separate defense, as distinguished from a denial of allegations alleged in the complaint, then a demurrer to that separate defense should be sustained, although as a part of that defense material allegations of the complaint are denied. I agree with Mr. Justice Laughlin, however, that as to each of the defenses, except the fourth, the facts as alleged constitute a defense to the action. By the fourth defense the defendant, by realleging allegations in paragraphs 1 to 5 of the answer, admits that he is the owner of the building, and then alleges that the planning, erection and construction of the building described in the complaint was fully and fairly committed to competent and skilled architects and engineers, qualified for such work, under instructions to plan and erect a thoroughly safe and substantial structure; that the defendant was not skilled or informed in said matters, and entire reliance was placed in said architects and engineers in all matters pertaining to the preparations of plans and specifications, and to the superintendence and inspection of said work and construction and materials; that the defendant did not interfere with the said architect or engineer in the discharge of their duties; that the work of constructing-said building was intrusted to independent contractors who were skilled and competent persons qualified for such work and had contracted to supply the best materials and the most skillful and careful labor, and to do all to the satisfaction of the architects and engineers, and that the defendant never had any knowledge or notice of any defect in the construction or condition of said building. The plaintiff was injured while in Fifth avenue in the city of New York, a public street, by the fall of brick, mortar and other building materials from the building which the plaintiff owned. In such case the rule res ipsa loquitur applies, and from the incident itself the jury *317are authorized to infer negligence. I know of no principle by which the owner of a building upon a public street is as a matter of law relieved from liability for injury to persons lawfully upon the street caused by the faulty construction of the building because he has selected architects or contractors to construct the building and relied upon their skill and diligence to make the building safe. Where the accident happened because of negligence of an employee of a contractor engaged in erecting a building, the building itself being properly and securely constructed, the contractors would be alone liable; but where the accident is occasioned by the faulty construction of the building, so that after it is erected it is unsafe, and falls into the street, injuring a person rightfully there, I do not understand that the owner of the building can as a matter of law be relieved from responsibility for the insecure and unsafe building because he had employed competent architects or contractors to plan and perform the work of constructing it.
¶2I think, therefore, that this separate defense was insufficient and that as to that defense the demurrer should have been sustained.
¶3Hatch, J., concurred.
¶4Judgment affirmed, with costs.