115 N.Y.S. 366 | N.Y. App. Div. | 1909
Lead Opinion
The complaint alleges that the plaintiff entered into a contract With one Bossiter whereby the plaintiff agreed to install or cause to be installed a system of piping and plumbing in which the specifications provided: “After the completion of the plumbing work according to these specifications,, and before its final acceptance by the owner, the plumber must turn on the water, leave everything in perfect working order, remove all his tools and surplus material from the premises and obtain a final certificate of approval from the architect. The plumber must guarantee the quality and keep in répair and good condition all parts of" the work without extra charge for one. year after the date of the final certificate.” That the defendant was engaged in the business of piping and plumbing, and plaintiff for the purpose of fulfilling his contract with Bossiter entered into a contract with the defendant, a copy of which is annexed to the complaint; that in the installment of said system of plumbing and piping in this building a pipe was run up alongside one of the pillars of said building, and attached to said pipe and underneath each floor of the building was a short branch pipe known as an offset pipe, each of which was to be capped in order to prevent the escape of water; that said defendant in an unworkmanlike manner, carelessly and negligently and in violation of his contract with said plaintiff left one of said offset pipes on the
By the contract annexed to the complaint the defendant agreed to furnish all the labor, materials, tools and appliances.required for completing the plumbing and gasfitting and "the installation of the water boiler in connection with the building named “ according to the revised plans and specifications prepared for the same, * * * which plans and specifications are hereby referred to and made part of this contract.”
In the answer the defendant admits receiving a copy of the summons and complaint in the action brought by Rossiter against the plaintiff, admits receiving letters from the plaintiff, and denies the other allegations of the complaint.
Upon the trial of the action Rossiter was called as a witness and
The action of Rossiter against the plaintiff was based solely upon the fact that this offset pipe had been left uncapped. The complaint in that action specifically alleged that- the specifications ' required that this pipe should be capped; that the plumber should turn on the water and leave everything in perfect working order ; that plaintiff had made a contract with Spelman, the defendant, to perform said work according to these specifications; that Spelman had failed to carry out his contract, and in violation thereof left one of said offset pipes without a capthat the plaintiff in this action had turned the work over to Rossiter as completed according to the contract, and in consequence of the failure of the defendant to put the cap upon this offset pipe Rossiter liad sustained damages. Thus it appeared by the complaint in the action against the plaintiff that the basis of Rossiter’s claim against the plaintiff was the violation by the defendant of his contract with the plaintiff and the question presented for litigation in that action was the question as to whether or not the defendant, in violation of his contract, had left this offset pipe uncapped and in consequence of the plaintiff turning over the building .in that condition to Rossiter the latter was entitled to judgment against the plaintiff. If the defendant had been a party to that action the facts alleged would have established a liability against defendant in favor of plaintiff. That issue being thus presented, the defendant had notice of the commencement of the action- and was requested to defend with notice that if he failed to defend he would be held liable for any amount recovered in that action. He refused to defend and in consequence thereof Rossiter recovered a judgment against the plaintiff.
The general rule as to the effect of á judgment upon one who is not a party to an action of which he had notice when he is sought to be held liable for the judgment is that “in so far as the issues
I think the application of this rule made this judgment conclusive as to his liability for the damage claimed as against this defendant. His failure to perform the contract with the plaintiff was the
It follows that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin and Scott, JJ., concurred ; Laughlin and Clarke, JJ., dissented.
Dissenting Opinion
This is an action over on a judgment recovered against plaintiff by one Bossiter who was the owner of a building situate at the southeast corner of Broadway and Bond street in the city of Hew York, on account of damages sustained by the premises being flooded, which was caused by an offset pipe being left uncapped on the eleventh floor of the building, thereby permitting the water, when turned on, to escape. The plaintiff was a builder and he contracted with, the owner of this building for the installation of a system of plumbing and piping. Plaintiff sublet this work to the defendant.
It was not important to show who constructed the pipe or. whether the sub-contractor fully performed his contract. It was sufficient to warrant a recovery by the plaintiff in the former action for him. to show'that the defendant therein, who is the plaintiff herein, was guilty of negligence in turning over the work in this uncompleted condition, and it was quite immaterial to that issue whether'when this defendant left the work the pipe was or was not capped, for the plaintiff herein would have been equally guilty of negligence had one of his own employees subsequently" removed the cap, or had it been otherwise removed under circumstances involving a duty on him to discover such a removal.
I am, therefore, of opinion that the judgment should be affirméd.
Clarke, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.-