191 Misc. 957 | N.Y. Sup. Ct. | 1948
Motion by defendant Stephen Ransom, Inc., (hereinafter referred to as “ Ransom ”), to strike from the answer of the impleaded defendant Yallone Contracting Co., Inc. (hereinafter referred to as “ Yallone ”), as legally insufficient on its face, the separate defense embraced in paragraphs “ Third ” to “ Tenth ” inclusive.
The pleadings disclose that plaintiff brought this action against Ransom to recover damages for injuries allegedly sustained by him on July 24, .1944, while working in hold No. 5 of the “ S. S. Charles A. "Warfield ” which was then in navigable waters at Pier K, Weehawken, New Jersey. Ransom, which had entered into a contract with the United States to perform certain work on this ship impleaded, as third party defendants, pursuant to section 193-a of the Civil Practice Act, Robert Banks & Co., (hereinafter referred to as “ Banks ”), subcontractors who agreed to furnish riggers to operate the winches and hoists, and Yallone, the subcontractor who was to furnish and install sheathing in the holds. In its pleading, embracing among other things a third party complaint against the defendant Yallone, Ransom alleged that if the plaintiff was injured 11 by reason of any negligence other than his own, then such injuries and damages were caused by or resulted from the use by the third-party defendant Yallone Contracting Co. Inc., it’s [sic] servants, agents and/or employees of the hoists and winches of the afore
In its answer thereto, Vallone alleged, as a separate defense, its compliance with the Longshoremen’s and Harbor Workers’ Compensation Act (U. S. Code, tit. 33, § 901 et seq.), and that by virtue of section 5 of that act (U. S. Code, tit. 33, § 905) plaintiff’s exclusive remedy against Vallone is his claim for compensation, and that the latter cannot be required to indemnify Bansom or to contribute to any damages recovered by the plaintiff. It is this separate defense which Bansom now moves to strike out as legally insufficient on its face.
It is virtually undisputed that this defense would be insufficient under New York law. (Westchester Lighting Co. v. Westchester Co. Small Estates Corp., 278 N. Y. 175; Mirsky v. Seaich Realty Co., 256 App. Div. 658.) Vallone contends, however, that these cases are not applicable because they arose out of non-maritime torts, and that maritime actions, whether brought in a State or Federal court, are governed by Federal law. While this may be true as between the plaintiff and the defendant Bansom (Robins Dry Dock Co. v. Dahl, 266 U. S. 449; Riley v. Agwilines, Inc., 296 N. Y. 402), there is grave doubt, to say the least, whether it applies with respect to indemnification as between Ransom and Vallone. (See Just v. Chambers, 312 U. S. 383; Erie R. R. Co. v. Tomphins, 304 U. S. 64, 78.)
Counsel for Vallone places considerable reliance on the following dicta in the ease in the Circuit Court of Appeals of Porello v. United States (153 F. 2d, 605, 607, revd. in part sub nom. American Stevedores, Inc., v. Porello, 330 U. S. 446). This statement reads: “ For a right of contribution to accrue between tort-feasors, they must be joint wrongdoers in the sense that their tort or torts have imposed a common liability upon them to the party injured. A. L. I. Restitution § 86; 13 Am. Jur., Contribution § 51. Since the libellant has no cause of action against his employer, the United States can claim no contribution on the theory of a common liability which it has been compelled to pay.”
Aside from the fact that this language is dicta, it is to be noted that it deals with contribution, not with indemnity. Here is a manifest distinction, though, at times lost sight of, between suits in contribution and suits in indemnity. In this connection, the United States Court of Appeals for the District of Columbia in George’s Radio, Inc., v. Capital Transit Co. (126 F. 2d 219), said at page 222: “ For, as is often said, the latter implies
In the light of the foregoing, I am constrained to conclude that the separate defense challenged is insufficient in the instant case, and the motion to strike it from Válleme’s answer is granted. Settle order on notice.