263 A.D. 690 | N.Y. App. Div. | 1942
Defendant appeals from an order denying his motion to strike out the third cause of action in the complaints in
The circumstances, as pleaded in each complaint, are: “ That on the 26th day of December, 1939, and for some time prior thereto, the defendant was the owner of a metal container used by the defendant for the storage of dynamite in connection with the performance of the work under the contract * * * and which container and its contents exploded on the afternoon of December 26, 1939 resulting in injuries which caused the death of plaintiff’s intestate.” The cause of action in negligence pleads that defendant stored dynamite “in a container that was unfit, improper, unsafe and dangerous and inadequate to be used for the storage of dynamite; in constructing and maintaining said container and storing said dynamite in violation of and contrary to the provisions of article 16 of the Labor Law of the State of New York.” The second cause of action pleads that defendant, by reason of the allegations earlier recited, “ created and maintained a nuisance ” and that plaintiff’s intestate suffered injuries because thereof. The third cause of action, which is the one at issue, reiterates and realleges the facts in the earlier causes of action and continues: “That the contract made by the defendant with the State of New York and hereinbefore described provides, among other things, that ‘ The amount of explosives to be used and the quantity to be kept on hand and the precautions to be taken by the contractor shall at all times and places be such that no damage shall be done to any person or property.’ ”
Respondents cite to sustain their contention authorities stemming from Lawrence v. Fox (20 N. Y. 268) wherein the terms specifically provide for payments to third persons not parties to the contracts. (Wilson v. Costich Co., Inc., 231 App. Div. 346; affd., 256 N. Y. 629; Hale v. Ripton, 234 id. 631; Pond v. New Rochelle Water Co., 183 id. 330.) In Wilson v. Costich Co., Inc., the authorities of a sewer district in the town of Brighton, Monroe county, N. Y., contracted
The issue here seems more nearly akin to Moch Co. v. Rensselaer Water Co. (247 N. Y. 160) wherein the defendant had contracted with the city of Rensselaer to furnish water for service at fire hydrants at a fixed rate per annum. Plaintiff’s warehouse was destroyed by fire. The complaint alleged that defendant was notified promptly of the fire, but omitted to supply an adequate buantity of water with sufficient pressure. Recovery was asked because of defendant’s failure to “ fulfill the provisions of the contract between it and the City of Rensselaer.” The complaint was dismissed, the opinion stating: “ a member of the public may not maintain an action under Lawrence v. Fox against one contracting with the city to furnish water at the hydrants, unless an intention appears that the promisor is to be answerable to individual members of the public as well as to the city for any loss ensuing from the failure to fulfill the promise. * * * In a broad sense it is true that every city contract, not improvident or wasteful, is for the' benefit of the public. More than this, however, must be shown to
In German Alliance Insurance Co. v. Home Water Supply Co. (226 U. S. 220) the subrogee, the insurance company, brought an action under conditions similar to those in the Moch case. The opinion states: “Before a stranger can avail himself of the exceptional privilege of suing for a breach of an agreement, to which he is not a party, he must at least show that it was intended for his direct benefit. For, as was said by this court, speaking of the right of bondholders to sue a third party who had made an agreement with the obligor to discharge the bonds, they ' may have had an indirect interest in the performance of the undertakings, but that is a very different thing from the privity necessary to enable them to enforce the contract by suits in their own names.’ Nat. Bk. v. Grand Lodge, 98 U. S. 123,124. * * * Here the city was under no obligation to furnish the manufacturing company with fire protection, and this agreement was not made to pay a debt or dis
Plaintiffs’ intestates had only an indirect interest in the performance of the contract between defendant and the State of New York. They had only the incidental benefit which every citizen of the State or person who came in the vicinity of the dynamite had in the performance of the contract. For the breach of that contract they did not have a private right of action, nor have their administrators.
The order appealed from should be reversed on the law and facts, "with twenty-five dollars costs in one action, and disbursements, and the third cause of action in each complaint and the reference thereto in the fourth cause of action should be stricken out, with ten dollars costs in one action.
Crapser, Heffernan and Foster, JJ., concur; Schenck, J., dissents.
Order reversed on the law and facts, with twenty-five dollars costs in one action, and disbursements. The third cause of action in each complaint and the reference thereto in the fourth cause of action is stricken out, with ten dollars costs in one action.