196 Misc. 335 | N.Y. Sup. Ct. | 1949
The plaintiff was injured while working on a building in course of construction by the defendant, Panning & Harris, Inc., as general contractor, for Metaplast Co., Inc., owner. The plaintiff brought his action against both Panning & Harris, Inc. and Metaplast Co., Inc., as defendants.
The complaint alleges that the plaintiff was caused to fall and to receive injuries solely because of the negligence of these two defendants “ in failing and neglecting to supply adequate ladders, scaffolding and other devices for the safety of plaintiff and others lawfully upon said premises upon said occasion, and in that defendants were otherwise careless, reckless and negligent.” The plaintiff’s bill of particulars alleges: “ (c) The defendants, its agents, and servants were negligent in failing to provide plaintiff with a safe place to work; in failing to provideo safe and adequate ladders, scaffolding, appliances, devices, tools and other working materials; in failing to keep fastened and in safe condition various boards, planks and other materials so that same would not cause planitiff to fall and be precipitated to the ground; in negligently and carelessly causing objects and material to he placed by defendants so that same endangered the life and safety of the plaintiff.”
The general contractor, Panning & Harris, Inc., served an amended third-party complaint upon the plaintiff’s employer, Barnaby Concrete Corporation, pursuant to section 193-a of the Civil Practice Act, alleging, among other things, that they had entered into an agreement whereby Barnaby agreed to furnish “ all the material and labor and to supply safe and adequate ladders, scaffolding, appliances, devices, tools, boards, planks and other working material for the construction of all the said concrete work on the aforementioned building, which was then in the course of construction.”
The said amended third-party complaint then further alleges that Barnaby pursuant to said agreement had furnished, sup
The third-party defendant Barnaby now moves to dismiss the amended third-party complaint on the ground that it fails to state a cause of action against Barnaby and that it is improper to bring Barnaby into the action pursuant to section 193-a of the Civil Practice Act. The basis of the motion is said to be that no contract of indemnity has been pleaded and that one tort-feasor cannot bring in a joint tort-feasor. The plaintiff fias not joined in the motion. Whether the plaintiff is entitled to a discretionary order dismissing the third-party complaint on the ground of prejudice to the plaintiff’s case, as in Bailey v. Kew Queens Corp. (78 N. Y. S. 2d 5099) and in Kloppenberg v. Brooklyn Union Gas Co. (82 N. Y. S. 2d 687) is, therefore, not presented.
The governing principle is the doctrine of Fox v. Western New York Motor Lines (257 N. Y. 305, 307) to the effect that one
It is true that under the pleadings in this case, Banning & Harris, Inc., the general contractor, may be held liable for active negligence, in which event, of course, it would have no cause of action on its third-party complaint against Barnaby, the subcontractor. The plaintiff’s complaint, as amplified by his bill of particulars, however, states an amorphous cause of action under which the general contractor may be held liable to him for passive negligence, as well as for active negligence. If the general contractor is held liable for passive negligence, it may shift the .responsibility to the third party provided the latter should be found to have been the primary and active wrongdoer (American Employers’ Ins. Co. v. Brandt Masonry Corp., 252 App. Div. 506; Mirsky v. Seaich Realty Co., 256 App. Div. 658; Forman v. Udell, 267 App. Div. 823).
It has been said that there is indemnity 11 upon common law principles ”. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145, 156.) It has also been observed that “ the wrongdoer stands in the relation of indemnitor to the person who has been held legally liable ” (Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214, 217), and that this is by reason of “ status ” rather than contract (Branch v. Town of Eastchester, 258 App. Div. 727).
Whether it be contract or status is immaterial, so long as it is one or the other, and the wrongdoer stands in the relation of indemnitor to the person who has been held legally liable.
Barnaby, the thiry-party defendant, argues that the plaintiff in his complaint has charged Banning & Harris, Inc., with active negligence, and that the third-party complaint of Banning & Harris, Inc., is entirely defensive to the complaint of the plaintiff. The third-party defendant claims that if the plaintiff proves that Banning & Harris, Inc., is guilty of active negligence, then Banning & Harris, Inc., has no claim over against anyone, and that if Banning & Harris, Inc., on the other hand, convinces the trier of the facts that it had nothing to do with the .accident, then the plaintiff is not entitled to a verdict. Thus, the third-party defendant concludes, in neither case has Banning & Harris, Inc., a claim over against the third-party defendant.
Motion to dismiss is denied.