117 N.E. 1082 | NY | 1917
Lead Opinion
Judgment affirmed, with costs, on opinion of LAUGHLIN, J., below.
Concur: HISCOCK, Ch. J., COLLIN, HOGAN and CARDOZO, JJ. Dissenting: CHASE, J. Not sitting: McLAUGHLIN, J.
Dissenting Opinion
I cannot agree with the decision in this case and for the following reasons.
The defendant lessor having retained possession and control of the elevator in its loft building was bound to maintain it in a reasonably safe condition and comply with all ordinances and building regulations relating thereto. It is conceded that the elevator was improperly constructed and negligently maintained. In consequence an employee of the plaintiff, a tenant on the fourth floor, was killed. After action brought by the repretatives of the deceased against the plaintiff for negligence in furnishing its servant with an unsafe place to work a settlement was made for a reasonable amount *709 which the employer seeks to recover in this action from its landlord whose negligence created the condition.
It is said that this plaintiff was in pari delicto and cannot recover. The lessee had no control over the elevator and could not reconstruct or repair it. The only wrong charged against it is in having leased the premises at all, knowing the conditions. This is not such a participation in the primary wrong as to make the tenant equally guilty in the landlord's neglect. The authorities support this statement.
The leading case gives the rule as follows: "Our law, however, does not in every case disallow an action, by one wrong-doer against another, to recover damages incurred in consequence of their joint offense. The rule is, in pari delicto potior estconditio defendentis. If the parties are not equally criminal, the principal delinquent may be held responsible to his co-delinquent for damages incurred by their joint offence. In respect to offences, in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offence is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrong-doers." (Lowell v.Boston Lowell R.R. Corp. 23 Pick. 32.)
This rule runs through all the cases, expressed in various ways. (Mayor, etc., of New York v. Dimick, 49 Hun, 241;Washington Gas L. Co. v. Dist. of Col.,
The plaintiff's complaint should not have been dismissed as sufficient facts appeared to warrant submission of the case to the jury. *710
