165 N.Y. 208 | NY | 1900
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *210
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *211
We think this judgment should be affirmed. There is no allegation in the answer of the appellant, which is practically his complaint, that the city was primarily liable for the damages for which judgment was directed against the contractor, either as the author of his acts, his master, or joint wrongdoer with him, or as his surety. No such issue was tendered or has been tried. The city, pursuant to its ordinance and in order to protect itself, if by possibility it should be cast in damages because of the negligence of the contractor, agreed with him for indemnity against such contingent liability, and to that end withheld the balance otherwise due upon his contract, because meantime this appellant had presented to it a notice of the claim upon which he has now recovered a judgment in this action against the contractor. By the contract the city has a right to retain this money until proof is presented to it that the claim is satisfied. The contract did not provide that the city might pay the claim and charge the contractor with the amount. It can only charge the contractor with it in case it shall, because of its relations with him, be cast in damages for his wrong to the appellant, and thus be compelled to pay what, as between the contractor and itself, the contractor should pay. No attempt has been made to fix an original liability upon the city for the injuries done by the contractor to the appellant; it has had no day in court upon that question; and hence it has the right to retain the fund until that stage of the case is reached, if meantime the contractor does not satisfy the appellant's judgment. The city holds no money for the appellant, but simply to protect itself against the contingency contemplated by its contract with the contractor. It could take this indemnity without incurring any obligation to the appellant. (French v. Vix,
The appellant's contention, that he is entitled to be subrogated to the rights of the city in and to the fund it retains, fails, because of the reasons already stated. Subrogation is the substitution in place of the creditor of one, usually a surety, who under the compulsion of necessity, or for the protection of his own interests, has discharged a debt for which as between himself and another, the latter is primarily liable. In such case the surety or party paying is entitled to the security, benefits and advantages held by the creditor. (2 Beach Modern Eq. Juris. section 798.)
If the appellant had tendered the city the issue of its liability for the contractor's acts, and had recovered judgment against it upon that ground, then the city upon payment or the judgment might ask, under its contract with him, if it should need to do so, to be subrogated to the appellant's judgment against the contractor, so that it could assert the judgment against the contractor's demand for payment of the unpaid balance upon his contract. But as the case stands, the contractor is the indemnitor, but not yet the surety or debtor of the city, having only agreed to save it harmless in case the latter should be made liable for his defaults. When that event happens; the city, upon discharging its liability to the appellant, will at the same timepro tanto discharge its liability to the contractor.
The case is clearly distinguishable from Merchants andTraders' Bank v. Mayor (
That the city is a public municipality does not enlarge the scope of its contract obligation. That fact might have been important if the issue had been tendered it that the contractor was solely chargeable because he had assumed to discharge a public duty and was liable because through him the public duty had been mal-performed or not performed at all, to the appellant's injury, as in Robinson v. Chamberlain (
The appellant insists that it was error for the Appellate Division to direct absolute judgment against him, upon its reversal, instead of awarding a new trial. We think that it does appear that the appellant would certainly be defeated upon a new trial. (New v. Village of New Rochelle,
The judgment should be affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, CULLEN and WERNER, JJ., concur.
Judgment affirmed.