296 N.Y. 257 | NY | 1947
The plaintiff's intestate died from injuries sustained while lawfully riding in an elevator located in a tenant-factory building (Labor Law, §
The plaintiff originally sued only Brookman, alleging that it was negligent in failing to keep the elevator in safe and proper condition as required by statute (Labor Law, §§
Premier moved at Special Term for an order to strike out and dismiss the cross complaint for insufficiency, which was granted and which has been affirmed by the Appellate Division. The dismissal was on the theory that the owner's omission to do a statutory nondelegable act, although out of possession, made it a joint tort-feasor along with the tenant in possession, as both owed a positive duty under the statute to keep the premises, including the elevator, in proper condition; and that failure to plead the existence of an unequivocal agreement by Premier to indemnify Brookman rendered the cross complaint insufficient to state a cause of action for recovery over, citing as authority our recent decision in Semanchuck v. Fifth Ave. 37th St.Corp. (
In that case we concluded that, in construction and demolition projects, the statute imposed a "positive" duty upon the owner and contractor alike (Labor Law, §
In the instant controversy the pleading under attack alleges that the owner-landlord had neither possession nor control of the demised premises; that, on the contrary, such were under the exclusive possession and control of the tenant which was primarily responsible for safe and proper maintenance, including the elevator, as well as for compliance with applicable statutory requirements; that the tenant had an active, primary duty; and that the plaintiff's alleged injuries, if any, resulted from its active wrongdoing. The owner, although under a statutory duty (Labor Law, §§
The legislative design, as we see it, was to insure the injured plaintiff an existing and responsible defendant. As to the injured plaintiff it makes no difference whether the owner is in or out of possession or whether the tenant is in sole and exclusive possession and control; that is an expression of sound public policy approved by the court (Hente v. ShercoopCorporation,
The judgment of the Appellate Division and the order of the Special Term should be reversed and the motion to dismiss the cross complaint denied, with costs in all courts.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER and FULD, JJ., concur.
Judgment and order reversed, etc.