150 N.Y.S. 1000 | N.Y. App. Div. | 1914
Lead Opinion
The complaint contains two counts or causes of action. The first is to recover the sum of $27,488.56, which plaintiff alleges it has, in effect, been obliged to pay to the city of New York, owing to the failure of the defendant to properly perform a subcontract for part of the contract work which the plaintiff had agreed with the city of New York to perform, together with the sum of $530.75 costs recovered against it by the city. On the 18th day of June, 1909, the plaintiff entered into a contract with the city of New York for certain surface construction work on the Manhattan bridge over the East river, which the city was then constructing; and with the consent of the city the plaintiff employed the defendant to do the asphalting embraced in its contract. Through the negligence of the employees of the defendant in overheating a kettle of tar, or tar and asphalt, during the performance of the work, a fire was started damaging ties and other work to an extent which required the expenditure by the city for replacement and repairs of the amount, less the item of costs, for which this action is brought, and in an action by the plaintiff against the city to recover on its contract for said work the city pleaded said amount, and another item relating to another fire, as damages caused by the failure of the plaintiff to take “ample precautions” to protect the finished work against injury by fire as required by the express provisions of the contract. The plaintiff pleads the material provisions of its contract with the city and alleges, among other things, that by the express provisions of its contract with the defendant, the defendant undertook and agreed to accept all the conditions and perform all the obligations with respect to said work imposed upon the plaintiff by its contract with the city, and that it thereby became the duty of the defendant to take ample precautions to protect the work and the structure, so far as completed, against injury by fire, and to make good at its own cost and expense and to the satisfaction of the engineer representing the city the parts of the work damaged through its failure to take such precautions, as the plaintiff was expressly obligated to do by its contract with the city. The plaintiff alleges that after the city interposed its answer in the
This court in that action held that the city was entitled to retain and deduct from the amount due the plaintiff under the contract the cost of such replacement and repairs (Lord Electric Co. v. City of New York, 160 App. Div. 344), and the judgment in that action is conclusive on defendant with respect to the amount the city was entitled to deduct and with respect to its right to make the deduction from the contract price provided the defendant was responsible for the fire. (City of New York v. Corn, 133 App. Div. 1; City of New York v. Lloyd, 148 id. 146.)
The second count is to recover $11,500 for damages alleged to have been caused to property of the plaintiff by fire owing to the negligence and carelessness of the defendant in managing furnaces used for heating asphalt, and in failing to guard and control the fires therein during the performance of said work. It is not alleged that the fire which caused the damages to the plaintiff’s property was the same fire as that which damaged the property of the city.
The grounds of the demurrer are (1) that causes of action have been improperly united, in that a cause of action on a contract of indemnity, express or implied, has been united with a cause of action for tort, not arising out of the same transaction or transactions connected with the same subject of action; and (2) that it appears upon the face of the first cause of action that the facts are insufficient to constitute a cause of action'.
The demurrer for misjoinder of causes of action was overruled by the Special Term on the theory that regardless of whether the first cause of action is on contract or in tort, it is for an injury to property, and that both causes of action are for injuries to property within the contemplation of the provisions of section 3343, subdivision 10, of the Code of Civil Procedure, and that such causes of action may be joined under section 484 of the Code of Civil Procedure. I am unable to agree with that theory. The first cause of action is not for an injury to the plaintiff’s property. The only manner in which the plaintiff’s property has been injured on account of the facts therein alleged is by the plaintiff’s being unable to collect the amount due and owing to it from the city on account of the defendant’s failure to perform its sub-contract in the manner agreed. That, I think, is not an injury to property within the legislative definition. In one view of the question it is unnecessary to decide whether the first cause of action is for negligence or is for the breach of a contract, express or implied, because in either event the causes of action as pleaded have been improperly joined, for it is not alleged that they arose out of the same transaction, or transactions connected with the same subject of action, and, therefore, even if the cause of action be for negligence it could not be joined with the other tort action. It may be, however, that the damage to the plaintiff’s property which is the subject of the second cause of action was caused by the same fire which damaged the property of the city, and that on that theory they both arise from the same cause, and, therefore, it is proper that we should decide whether the objection raised by the demurrer
McLaughlin and Hotchkiss, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.
Dissenting Opinion
I think it clear that if the complaint alleged that the injury both to the property belonging to the city and the property belonging to the plaintiff occurred at the same time and was caused by the same fire which resulted from the negligence of the defendant, the case would come within subdivision 9 of section 484 of the Code of Civil Procedure which authorizes the plaintiff to unite in the same complaint two or more causes of action “ upon claims arising out of the same transaction or transactions connected with the same subject of action.” The failure of the plaintiff, however, to allege that the damages for which it seeks to recover upon those two causes of action were caused by the same fire would require us to sustain the demurrer to the complaint if that was the only subdivision of section 484 of the Code of Civil Procedure which was applicable. But I think that these two causes of action may fairly be said to come within subdivision 6 of that section which provides that causes of action may be united where they are brought to recover “ for injuries to personal property.” The first cause of action is based upon the damage that was sustained by the city in consequence of the fire which was caused by the negligence of the defendant and which destroyed property of the city to the value of $27,488. It seems to me that this was clearly a cause of action based upon injury to personal property. The question as to the defendant’s liability to the plaintiff was based upon the fact that the plaintiff had a contract with the city to do work upon this bridge; that the plaintiff sublet a portion of this contract to the defendant; and that the defendant in the performance of that contract negligently allowed a fire to start which consumed said property to the value stated. When the city sought to recover the damage sustained from the plaintiff
I, therefore, dissent from the reversal of this judgment.
Dowling, J., concurred.
Judgment reversed, with costs, with leave to plaintiff to sever action on payment of costs in this court and in the court below. Order to be settled on notice.