This is а motion by the third-party defendant, William Spencer & Son Corporation, to dismiss the amended third-party complaint of Marra Bros., Inc.
Judge Rifkind dismissed the original third-party complaint from the Bench, so that no written expression of his reasons is available. It goes without saying, however, that he was unable to find allegations clearly imposing liability upon the third-party defendant for the matters asserted against the third-party plаintiff.
The plaintiff, an employee of the third-party defendant (Spencer) was injured when a door on Pier 2, Hoboken, fell upon him. His complaint alleges that the accident was caused by the negligence of Marra in that as tenant in possession of said pier, it negligently аnd improperly maintained a door thereon and failed to provide proper appliances, etc. The third-party defеndant (Spencer) was impleaded upon the theory that Marra’s liability was occasioned by the primary fault of Spencer in that thе employees of Spencer negligently and improperly opened and secured the said door in an open position and employed therefor defective and dangerous appliances for said purpose.
The amended third-party complaint is not substantially different than the original, except that it more precisely alleges the relationship between Marra and Spencer.
Marra’s theory in asserting liability over against Spencer is simply this: that the third-party defendant is obligated under the common law as a primаry active tort-feasor to indemnify the third-party plaintiff, a merely passive secondary tort-feasor. In support of this propositiоn, Marra cites Rich v. U. S., 2 Cir., 1949,
The Riсh case was a suit in admiralty in which the Court decided that the United States, the shipowner, could implead the libellant’s employer despite the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. But there was no question of the right of the United States to implead the third party, aside from the bar of the Act, for the third party was primarily liable for the injuries in suit, while the United States, which was only constructively negligent, was obligated for the negligence of the third party solely by reason of a shipowner’s nondelegable duty to maintain a sеaworthy vessel. As the Supreme Court said in Seas Shipping Co. v. Sieracki,
The other cases cited by the third-party plaintiff, including Burris v. American Chicle Co., 2 Cir., 1941,
On the other hand it is well settled in Nеw Jersey and in New York that an owner, lessee or other occupier of land cannot be held liable for the negligent acts of third рersons unless it has some independent duty imposed by statute or one
In all logic, therefore, there can be no basis for liability over on thе part of Spencer under the allegations of the amended third-party complaint.
If the plaintiff obtains a recovery against Mаrra upon his complaint it will be by reason of Marra’s negligence in maintaining a defective door. In other words, Mar-ra will have violatеd obligations owing to business visitors, etc. In this situation Marra can have no claim over against Spencer for its own negligence. Further, if the аccident was created by the negligence of Spencer, then Marra will be absolved and no need for recovery against Spencer will arise.
I have not discussed the .possibility of the parties being joint tort-feasors and its effect for the reason that the third-pаrty defendant repudiates any idea of contribution.
In view of all this it is plain that the amended third-party complaint is defective for failure to allege facts indicating Marra’s possible liability to plaintiff upon the basis of a nondelegable obligation of which the failure tо discharge would constitute passive or .constructive negligence.
The motion to dismiss is granted.
Settle order.
On Motion to Revise or Vacate
Motion made by the attorneys for defendant and third-party plaintiff for an order revising or vacating the order entered herein the 28th day of March, 1950, dismissing the third-party complaint on the merits without leave to serve and file a further amended third-party complaint herein, or in the alternative granting a rehearing of the motion to dismiss the third-party cоmplaint.
The defendant and third-party plaintiff appealed to the U. S. Court of Appeals for the Second Circuit from the above order. The record on appeal was filed in the office of the clerk of the U. S. Court of Appeals on April 12, 1950.
The third-party defendant, appellee, moved before the U. S. Court of Appeals to dismiss the appeal. The motion was argued on May 1, 1950 and resulted in a decision dismissing the appeal because the order entered herein on the 28th day of March, 1950 was not a final judgment within the meaning of Fеd.Rules Civ.Proc. rule 54(b), as amended, 28 U.S.C.A., since there was no express determination by this Court that there is no just reason for delay. ■
The appliсation before me in essence is to amend the original order so as to insert therein the words “that there is no just reason for delay.” Dеfendant and third-party plaintiff contend the addition of these words or these words in substance will make the order of March 28, 1950 a final judgment from which an appeal may be taken.
Assuming that I have the right and authority to include the aforesaid words in it, I feel that I should not do so. This is an action for personal injuries brought by the plaintiff to recover for injuries received by him on June 13, 1949. I am told that he is severely injured. He applied fоr a preference and received one. The case was originally set for December, 1949 but for some reason or other had to go over and the trial of the case has now definitely been set for May 22, 1950.
I feel that the rights of the plaintiff herein should be considerеd seriously. Were I to grant the request of the defendant and third-party plaintiff it would mean the entry of a new order, á new notice of appeal and perhaps a new record for the Appellate Court. Certainly the trial would be delayed greatly and perhaps would have to be put over until the fall. The plaintiff is entitled to a speedy trial which the Court has granted him. I, therefore, feel I should deny the motion.
Motion denied.