181 Misc. 106 | N.Y. Sup. Ct. | 1943
This is an action brought by plaintiff, the owner of 190 cases of Wilson Whiskey, which were stored with defendant Midtown Warehouse, Inc., a warehouseman in the building owned and controlled by the defendant Pioneer Beal Estate Co,, Inc. The first cause of action is against both defendants. The owner of the building (Pioneer) seeks to dismiss the complaint as to it on the ground that the plaintiff can have no valid claim against it because it is not the warehouseman and therefore owed no duty to the plaintiff, either on the theory of tort or contract. One of the theories upon which the plaintiff seeks to recover against defendant Pioneer is based upon the latter's negligence in failing to properly protect the property of the plaintiff in the custody of Midtown, its tenant.
The moving party asserts that there is no privity in law between it and the plaintiff and that the courts should not go beyond the warehouseman in permitting any recovery by the
Nor does the plaintiff have to rely solely on an independent action in tort in this case to recover. This asportation occurred when the defendant Pioneer was in sole control of the premises. It had a contract of lease with Midtown to protect its property while so in control. It is asserted that it was negligent or that its employees took part in an arrangement to remove the goods. In either event the defendant Pioneer must respond in damages to plaintiff bailor for its tortious act with respect to the bailor’s goods.
The other theory upon which recovery is sought is based • upon a right to sue founded in a breach of Pioneer’s contract with Midtown. The plaintiff, who is a bailor, can take advantage of that breach and recover damages for its loss. It has been said: “ Where the bailee and a third party enter into a contract respecting the subject matter of the bailment, the bailor may sustain an action for a breach of contract against such third person.” (8 C. J. S., Bailments, § 39, p. 314. Polack v. O’Brien, 114 App. Div. 366.) Here the charge is that as a result of the breach of the contract of safekeeping of the warehouseman’s premises by Pioneer, the goods of the plaintiff in the warehouseman’s premises were damaged. A cause of action then arose in favor of the plaintiff and against the owner of the building who undertook to guard and keep safe those premises and everything in them, including goods of others such as the plaintiff, entrusted to the safekeeping of the warehouseman. The liability of the defendant Pioneer must be determined by the facts as produced at a trial. Motion is denied. Order signed.