183 A.D. 548 | N.Y. App. Div. | 1918
This is an action to recover the amount of a judgment recovered against the plaintiff by the city of Louisville, in the Circuit' Court, Common Pleas Branch, of Jefferson county, Ky., which is a court of general jurisdiction, together with the expenses of defending the action.
The theory of the action is that the recovery in the State of Kentucky against the plaintiff was for negligence in the execution of work authorized by a permit issued by the department of public works of the city of Louisville to the plaintiff on the 8th day of November, 1907, for laying conduits and laterals and the construction of manholes and service boxes on Fourth street from Main street to Broadway in said city, which was performed by the defendant under a contract with the plaintiff, and that the plaintiff was obligated
At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint. The motion was denied, with leave to renew at the close of the evidence, and thereupon counsel for the defendant stated that defendant desired an opportunity to procure and introduce evidence of all the facts connected with the accident to Mrs. Harding and with respect' to her damages and the defendant’s negligence, and the court announced that an opportunity would be afforded him therefor in the event it should be decided that the- plaintiff’s evidence sufficiently made out a prima facie case, and upon that suggestion defendant rested and renewed his motion for a dismissal, and plaintiff moved for judgment. The court, after hearing argument and receiving briefs, wrote an opinion holding that the judgment recovered against the plaintiff conclusively established its liability to the city and the amount thereof, but did not establish that the negligence for which the plaintiff was- held liable was the negligence of the defendant, and fixed a time at which the plaintiff would be allowed to introduce further evidence to show negligence on the part of the defendant. Later on counsel for the plaintiff informed the court that it had no further evidence to offer, and thereupon the defendant moved for a dismissal, which was granted.
It was admitted by the pleadings herein that the defendant entered into a formal contract in writing with the plaintiff on the 11th of July, 1907, to construct a conduit system for it in the city of Louisville in accordance with the terms and conditions thereof and by which he agreed to erect a fence or railing around any excavation made by him, if required,
The learned counsel for the respondent contends that the judgment recovered by the city against the plaintiff is neither prima fade nor conclusive against him on any issue. That position is, I think, untenable. The defendant’s agreement with the plaintiff was one of general indemnity against damages caused by his negligence in the performance of the contract work and by his failure to guard excavations as therein provided, and the rule in such case is that the recovery against the party indemnified, even in an action of which the indemnitor had no notice, is prima fade evidence, and he is at liberty to show that the principal had a good defense to the claim and, of course, might show that the judgment was recovered through fraud or collusion (Bridgeport Insurance Co. v. Wilson, 34 N. Y. 275, 280; Binsse v. Wood, 37 id. 526, 530; Phoenix Bridge Co. v. Creem, 102 App. Div. 354; affd., 185 N. Y. 580; Fulton County G. & E. Co. v. Hudson River E. Co., 200 id. 287, 297); and where, as here, the defendant had notice and an opportunity to take part in the defense of the action by the city against the plaintiff, the judgment is, I think, conclusive evidence' against the defendant with respect to the plaintiff’s liability to the city in the absence of fraud or collusion, and the only other defense open is with respect to whether the defendant is liable for the condition of the sidewalk on account of which the plaintiff was held liable. (Oceanic S. N. Co.
Clarke, P. J., Dowling, Smith and Page, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.