12 A.D.2d 813 | N.Y. App. Div. | 1961
For the purpose of reconstructing and converting his garage into a dwelling, plaintiff, the owner, entered into a contract with defendant Lindstrom as the general contractor. The other defendants named are subcontractors: defendant Makeever being the heating subcontractor who installed the oil burner; defendant Leiding being the oil burner-service subcontractor who serviced the burner; and defendant Manuel being the mason subcontractor who installed the chimney. After completion of the job a fire occurred. Based on breach of contract, plaintiff has sued the general contractor; and, based on negligence, plaintiff has sued him and the three subcontractors named, to recover damages for injuries to Ms person and property. The general contractor asserted a counterclaim against plaintiff for the balance due him for his work. The general contractor also asserted a cross claim over against the subcontractors Makeever and Manuel. The subcontractor Leiding asserted a cross claim over against the general contractor and the subcontractors Makeever and Manuel. The subcontractor Manuel asserted a cross claim over against the general contractor and the subcontractors Makeever and Leiding. Based on an insurance policy, the general contractor Lindstrom also instituted a third-party action against his insurer, Queen Insurance Company of America. As to the heating subcontractor Makeever, the action was severed because of his failure to appear at the trial. The parties cross-appeal from the judgment of the Supreme Court, ¡Nassau County, rendered March 23, 1959, after a nonjury trial, the judgment being: (1) in favor of plaintiff for $2,796.98 against defendant Lindstrom; (2) in favor of defendant Lindstrom, as third-party plaintiff, for $6,936.93 against the insurer third-party defendant; (3) in favor of defendants Leiding and Manuel dismissing the complaint against them; (4) in favor of said two defendants dismissing the defendant Lindstrom’s cross claims against them; (5) in favor of defendants Lindstrom and Manuel dismissing the defendant Leiding’s cross claims against them; and (6) in favor of defendants Lindstrom and Leiding dismissing the cross claims of defendant Manuel against them. The insurer third-party defendant appeals from the entire judgment. Defendant Lindstrom appeals from so much of the judgment as is in favor of the plaintiff against him and as awarded him $6,936.93 against the insurer on the ground that said sum is inadequate. Defendant Manuel appeals from so much of the judgment as dismissed his cross claims against defendants Lindstrom and Leiding. Defendant Leiding appeals from so much of the judgment as dismissed her cross claims against defendants Lindstrom and Manuel. Appeal of the insurer tMrd-party defendant, insofar as it is from the third, fourth, fifth and sixth decretal paragraphs (which dismissed plaintiff’s complaint against defendants Leiding and Manuel, and which dismissed the respective cross claims of defendants Lindstrom, Leiding and Manuel against each other), dismissed without costs. The third-party defendant is not a party aggrieved by such portions of the judgment. Judgment, insofar as appealed from and insofar as the appeal has not been dismissed, affirmed, with costs to the plaintiff payable by the third-party defendant. Under the terms of the agreement between plaintiff and the general contractor, defendant Lindstrom, the latter was required to install a suitable heating plant and chimney. The chimney was actually constructed by defendant Manuel, as subcontractor, and the heating plant by defendant Makeever, as