11 Misc. 2d 583 | N.Y. Sup. Ct. | 1954
The plaintiff brings this action '’to' recover from the defendant bank for causing the wrongful death of the plaintiff’s intestate and also to recover damages for the decedent’s conscious pain and suffering. The substance of the allegations of the complaint is to the effect that the plainliff’s decedent, an employee of the Otis Eleva lor Company, was
The defendant, after answering the complaint, served a third-party complaint upon the plaintiff’s employer, the Otis Elevator Company. This third-party complaint alleges in substance that the defendant bank had a contract with the elevator company , for the installation of new elevators in its building which con-/ tract, among other things, required the elevator company to install a temporary partition or screen between the two portions of the elevator shaft and also required the elevator company to discontinue its work in and about the elevators when the place became unsafe for its employees. It is alleged that the elevator
The elevator company, named as third-party defendant in the said third-party complaint, makes this motion to dismiss the third-party complaint, on the ground that it does not state facts sufficient to constitute a cause of action. In determining such a motion, the issue as to whether the defendant is liable to the plaintiff is not involved. The question is as follows: Assuming that the defendant is held liable to the plaintiff, does the defendant’s third-party complaint state facts sufficient to constitute a cause of action for indemnity from the elevator company! The theory of liability alleged in the third-party complaint is that of indemnity. Under this theory, the third-party complaint, in order to be sufficient, must allege facts indicating that the defendant might be held liable to the plaintiff for the defendant’s passive negligence or wrongdoing, and that the third party is the active wrongdoer in inflicting the plaintiff’s damage.
The case of Wischnie v. Dorsch (296 N. Y. 257) was an action involving the death of a plaintiff’s intestate in the fall of an elevator. The plaintiff sued the owner of the building for damages, on the theory that the defendant owner was under a duty imposed by the Labor Law to keep the elevator in safe condition. The defendant owner made a cross complaint against the Premier Linen Supply and Laundry Service, Inc., alleging that the latter was the lessee of the building in exclusive possession, and that the plaintiff’s injuries were sustained through Premier’s negligence. The Court of Appeals reversed an order dismissing this complaint holding that although the defendant might be liable to the plaintiff for violation of its statutory duty, it was only a passive wrongdoer and had a common-law
By comparison, the above-entitled case, the case of Schwarts v. Merola Bros. Constr. Corp. (290 N. Y. 145); Pugni v. Lanning & Harris (196 Misc. 335) and the instant case are somewhat similar insofar as active negligence is concerned. In fact these cases are not as strong as the instant case insofar as the claim of active negligence is concerned, and this case might well be decided on the authority of the three mentioned cases, if there was a clear allegation of active negligence and if it was clear that the negligence of the third-party defendant was wholly active.
It has been held that a passive wrongdoer or tort-feasor is also entitled to be indemnified from a third party who was actively negligent in the performance of a contractual duty. (See Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, affd. 298 N. Y. 686; Monteverdi v. French Realty Corp., 274 App. Div. 945; Braun v. Gardner, 191 Misc. 844.)
Thus, it has been conclusively established that a passive wrongdoer has a cause of action against the person chargeable with active negligence, either as to the duty imposed by law or an obligation under the terms of a contract.
If the original complaint in this action charges the defendant with active negligence, the defendant cannot implead the third-party defendant. They stand in the position of joint tortfeasors in pari delicto.
It has been held that if an original complaint alleges both active negligence and passive negligence, the third-party complaint would be sustained. (Schlemovitz v. City of New York, 81 N. Y. S. 2d 282, affd. 274 App. Div. 1064; Pugni v. Lanning & Harris, 196 Misc. 335, supra; Johnson v. Endicott Johnson Corp., 278 App. Div. 626; Marzella v. Carlson Hoist & Mach. Co., 280 App. Div. 955; Ellithorp v. Adams-Rice Constr. Corp., 281 App. Div. 917; Schellhorn v. New York State Elec, & Gas Corp., 283 App. Div. 678.)
For some period of time, the courts were not in complete agreement as to what constituted active negligence and what constituted passive negligence. Some courts used the test / of an act of commission or an act of omission. This distinction / has apparently been obliterated by the decision in Tipaldi v. Riverside Mem. Chapel (273 App. Div. 414, 419, supra), wherein the court said: 1 ‘ We see no reason why the right to indemnity in such case should not be the same whether the fault of/ the primary or principal wrongdoer is attributable to a neglj/gent
Turning now to a consideration of the complaint in the instant action, I am of the opinion that whether or not the complaint charges the defendant with active negligence only, thus eliminating the Otis Elevator Co. as a party to the action, or whether the allegations spell out passive negligence only, or whether there is a claim under the pleadings of both active and passive negligence becomes a question for the jury under a proper charge from the court at the time of trial.
Submit order denying motion.