178 Misc. 331 | N.Y. Sup. Ct. | 1942
The action is brought by the administratrix of Jack Walkowicz to recover damages for causing his death, which occurred May 21,1941, by falling from the outside of a fourth-story window which he was engaged in cleaning in a building at the corner of Main and Cortland streets, in the city of Rochester, N. Y. The screw eyes attached to the window sill that were used for fastening his safety belt gave way. The defendants Forman and Steiner were the owners of the building at the time of the accident and had leased it to the defendant Raye-Namrof, Inc., which, in turn, had leased to the defendant Whitney’s, Inc. The latter defendant was in exclusive possession at the time of the accident. Plaintiff’s intestate was an invitee of defendant Whitney’s, Inc. Plaintiff seeks to hold defendant Whitney’s, Inc., and its manager, Jacob Sternberg, for violation of section 202 of the Labor Law and to hold them and the other defendants for common-law negligence and nuisance.
Defendants Forman, Steiner and Raye-Namrof, Inc. (hereinafter sometimes referred to as the owner-lessors), in their answers have asked for judgment against defendant Whitney’s, Inc., by way of recoupment of any damages which the plaintiff may succeed in recovering against them. Whitney’s, Inc., now moves to strike out these cross-claims upon the theory that Raye-Namrof, Inc., Forman and Steiner could not be rendered liable in law by reason of any wrongful act or neglect on the part of Whitney’s, Inc.; that they could only be held on account of some independent wrongful conduct of their own; and that, in such event, they would have no right to be indemnified against the consequences of their own wrongdoing (Oceanic Steam Nav. Co. v. Co. T. E., 134 N. Y. 361), at least in the absence of the expression of such an intention in unequivocal terms in the indemnity clause in the lease. (Thompson-Starrett Co. v. Otis Elev. Co., 271 N. Y. 36, 41; Swift & Co., Inc., v. Stewart & Co., Inc., 261 App. Div. 930.) The position is that the owner-lessors cannot be held liable to the plaintiff except upon a theory which would preclude them from making Whitney’s, Inc., pay the entire loss.
In deciding these motions it should be borne in mind that the purpose of section 264 of the Civil Practice Act, pursuant to which the cross-claims are made, is to avoid a multiplicity of suits and circuity of action (Mirsky v. Seaich Realty Co., 256 App. Div. 658; Birchall v. Clemons Realty Co., Inc., 241 id. 286; Travlos v, Commercial Union of America, Inc., 217 id. 352, 359), and that unless
Actually the problem now before the court is less simple. This complaint, no doubt, contains “ a plain and concise statement of the material facts ” (Civ. Prac. Act, § 241) sufficient to sustain plaintiff’s causes of action against the owner-lessors in negligence and nuisance. But negligence and nuisance are variable terms, and appear in many aspects where injury from defective real property is concerned so that the court is unable to classify what kind of nuisance or negligence is involved here until the evidence appears. The complaint is broad enough to include a number of varieties, but the law to be applied which will determine whether the owner-lessors can obtain recoupment will depend upon the particular type which is proven at the trial. Therefore, as in many nuisance and negligence actions, the idea that the complaint contains a plain and concise statement of all the material facts must be regarded partly as a fiction. This complaint is sufficient in law, but does not denote in advance of the trial the particular style of tort upon which the owner-lessors may be held liable. Moreover the law grows out of the facts, is affected by differences in the facts, and in cases of this kind the court should have the evidence before it before deciding the law to be applied. “ Negligence ” and “ nuisance ” are headings which have sub-headings; the headings, so to speak, are pleaded herein by appropriate statements of fact; but the sub-heads are not pleaded, are not required to be pleaded, and will not be disclosed except by the evidence. Whatever sub-headings are proven will determine whether recoupment in favor of the owner-lessors will be granted or denied. Therefore the questions raised by these motions cannot be decided bn the pleadings; they must await the outcome of the trial.
In order to express tangibly what has been stated, it will be well to analyze more particularly the theories of liability presented by the complaint. The first two causes of action are against
Considerations such as these may require dismissal of the cross-claims in the controversy between defendants upon the trial of the action, but it would be premature to dismiss them now. It is untrue, as contended on behalf of Whitney’s, Tnc., that the complaint leaves open no theory of liability on the part of the owner-lessors on which it could reasonably be contended that they would be entitled to obtain recoupment. Concealment of a dangerous condition from a tenant about to take possession, which has been discussed above, is not the only theory on which plaintiff relies. Recoupment could not be obtained on that, but the plaintiff may fail on that issue and succeed on others. Although it is true that a landlord is not generally liable to third parties for his negligence in permitting the existence of a dangerous condition at the time of letting, the rule is otherwise where the premises are rented for a public use. (Junkerman v. Tilyou Realty Co., 213 N. Y. 404; Barrett v. Lake Ontario Beach Imp. Co., 174 id. 310.) It has been
The indemnity clause in this lease is not the only basis .on which recovery over could be allowed, as. was pointed out in the somewhat similar .case of Mirsky v. Seaich Realty Co. (supra) which distinguished Thompson-Starrett Co. v. Otis Elev. Co. (supra) on the; ground that the tenant was under duty to repair by operation of law on account of his exclusive possession of the property, fortified, as in the case at bar, by an express covenant in the lease to. similar effect. It is said that under such circumstances “ 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) by reason of “ status ” rather than “ contract.” (Branch v. Town of Eastchester, 258 App. Div. ,727.)
Litigations have been' fought over whether the party seeking to be indemnified is precluded by being in pari delicto with the alleged idemnitor as a joint tort feasor. In Oceanic Steam Nav. Co. v. Co. T. E. (supra, 465) the statement is made that. " the general rule is that there may be a recovery had in such cases unless the parties concurred in the wrong which caused the damages.” On the other hand, in City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475, 487) it was said: “.Where the parties are not equally criminal, the principal delinquent may be' held responsible to a co-delinquent for damage paid by reason of the offence in which both were concerned in different degrees as perpetrators.” In Scott v. Curtis (195 N. Y. 424) an owner was allowed recoupment against persons delivering coal at his house although he himself had permitted the cover of the coal hole through which the injured person fell to be removed from the sidewalk in front of his.premises. A number of decisions involving window washers are more or less in point. (Burris v. American Chicle Co., 120 F. [2d] 218; Birchall v. Clemons Realty Co., Inc., supra; American Employers’ Ins. Co. v. Brandt Masonry Cprp., 252 App. Div. 506.) In them recoupment was allowed under varying circumstances. The-case.of
It may be noted, also, that no decision could be made now on the nature of the action which would bind the plaintiff since the plaintiff is not a party to these motions.
In the foregoing no consideration has been given to whether, if violation of section 202 of the Labor Law is established on the part of Whitney’s, Inc., that would render the plaintiff’s intestate ipso facto guilty of contributory negligence or assumption of risk under the language of that section so as to defeat a recovery against the owner-lessors based, not upon this provision of the Labor Law, but upon principles of common-láw negligence or nuisance made applicable by sections 130-134 of the Decedent Estate Law. (Cf. Lowenhar v. Commercial Outfitting Co., Inc., 260 App. Div. 211; Teller v. Prospect Heights Hospital, 255 id. 488; McFarlane v. City of Niagara Falls, 247 N. Y. 340.)
The motions of defendant Whitney’s, Inc., to strike out the cross-claims from the answers of defendants Raye Namrof, Inc., Forman and Steiner are denied, with ten dollars costs.