Schwartz v. Merola Bros. Construction Corp. , 290 N.Y. 145 ( 1943 )

On May 13, 1936, defendant, Merola Bros. Construction Corp., entered into a written contract with the defendant, the Bank for Savings in the City of New York, for the renovation of a building owned by the defendant Bank on East 83rd street in the city of New York. The general contractor sublet the tile, marble and terrazzo floor work to the defendant, Cerussi Marble Tile Company, Inc., and the latter sublet the terrazzo floor work to the defendant, New Deal Terrazzo Company, Inc. In connection with the performance of the contract, New Deal Terrazzo Company, Inc., procured the delivery of bags of terrazzo pebbles and other building materials and piled them on the public sidewalk in front of the Bank's building without any authority for the use of the sidewalk for that purpose.

The plaintiff, Bernard Schwartz, who was rightfully on the street, received injuries from one of the bags falling from the top of the pile and striking him and he and his father have brought this action against all the defendants to recover damages for the injuries which he thereby received. The jury found a verdict generally for plaintiffs against all of the defendants and specifically found "all four defendants equally guilty of negligence." Judgment for plaintiffs entered upon the verdict has been affirmed by the Appellate Division as to all of the defendants. Since there was ample evidence to sustain the verdict, the judgment in favor of the plaintiffs and against all of the defendants as joint tort-feasors must be affirmed.

The defendant Bank filed a cross complaint against the contractor and the subcontractors, demanding that the ultimate rights of the Bank and the co-defendants as between themselves be determined in this action pursuant to section 264 of the Civil Practice Act and that the defendant Bank have judgment over against all of the co-defendants for the amount of any verdict or judgment which might be obtained by the plaintiffs against the defendant Bank. Upon the special finding of the jury that all of the defendants were equally guilty of negligence, the trial term dismissed the cross complaint of the defendant Bank. Upon appeal the Appellate Division reversed the judgment of the trial court in so far as it dismissed the cross complaint of the Bank against the defendants Merola Bros. Construction Corp. and New Deal Terrazzo Company, Inc., upon the law and the facts and directed judgment in favor of the Bank against those two co-defendants but affirmed the judgment of the trial court in dismissing the cross complaint of the Bank against the defendant Cerussi Marble Tile Company, Inc.

The Bank claims that if it is liable to plaintiffs for damages it may recover over against the general contractor by virtue of an indemnity clause in its contract which reads as follows: "The Contractor agrees to indemnify and save harmless the Owner against loss and/or expense by reason of the liability imposed by law upon the Owner for damages because of bodily injuries, including death at any time resulting therefrom, accidentally sustained by any person or persons and/or on account of damage to property, due to any act or omission of the Contractor, his employees or agents, arising out of the work of the contractor as contemplated under this Agreement, * * *." That clause contains no statement that the general contractor will indemnify the Bank against the Bank's own negligence and is consequently not effective for that purpose (Thompson-Starrett Co. v. OtisElevator Co., 271 N.Y. 36).

It is urged that the Bank may recover over against the sub-contractors on the ground that the accident was caused through the "active" negligence of one or both of such subcontractors and that the Bank's liability arose only by virtue of "passive" negligence. At the outset it may be said that the relative responsibility of the Bank and the subcontractors was properly determined by the jury as a question of fact when they found "all four defendants equally guilty of negligence." Whether, upon evidence, a duty owing by one person to another is so violated that the former must respond to the latter in damages for negligence is a question of fact for the jury (Curtis v.Rochester Syracuse R.R. Co., 18 N.Y. 534; Employers'Liability Assur. Corp. v. Post McCord, Inc., 286 N.Y. 254,264). One may negligently cause or permit a missile to fall on a man's head and injure him or he may sit by and negligently omit to provide some required statutory safeguard against the missile falling through the negligence of another. Where the negligence of each is a competent, concurring, producing cause of the injury without which the injury could not have happened, liability may be imposed upon both equally (Walters v. Rao ElectricalEquipment Co., 289 N.Y. 57).

The Bank's liability is predicated upon the fact, as found by the jury, that the material was stored and piled on the public street in front of its building in connection with the performance of the contract for the renovation of its building for a substantial period of time before the accident after due notice to the Bank of that fact and knowledge on its part that the street was being used for that purpose without authorization either from the city or by statute or other legislative act. Any unauthorized obstruction of the sidewalk of a public street constitutes a nuisance (Callanan v. Gilman, 107 N.Y. 360,365; O'Neill v. City of Port Jervis, 253 N.Y. 423, 428). The Bank was liable in the first instance since it permitted the creation and maintenance of the public nuisance (Rosenberg v.Schwartz, 260 N.Y. 162, 166; Delaney v. Philhern RealtyHolding Corp., 280 N.Y. 461). No higher degree of care could be imposed on any person than that imposed on the defendant Bank. With full knowledge and notice of the dangerous obstruction of the public street, the Bank not only did nothing to remove it but knowingly permitted it to remain. Whether the Bank originally created the nuisance is immaterial to its responsibility and does not affect the degree of care imposed upon it. The duty of the Bank not to create a dangerous nuisance on the public street and the duty not knowingly to permit one created by a person with whom it had contracted to repair its premises to be maintained in front of its premises are the same. In either case its duty is primary, active and non-delegable.

The Appellate Division erroneously reversed the judgment of the trial term dismissing the cross complaint of the defendant Bank against defendants Merola Bros. Construction Corp. and the New Deal Terrazzo Company, Inc., and directed judgment in favor of the said Bank against both these defendants. Since the reversal as between those defendants was upon the law and the facts, the judgment of the Appellate Division, in so far as it reversed the judgment of the trial term in dismissing the cross complaint of the defendant Bank and directed judgment in its favor, should be reversed and a new trial granted on the cross complaint against those defendants, with costs to abide the event. The judgment appealed from should otherwise be affirmed, with costs.

LEHMAN, Ch. J., LOUGHRAN and DESMOND, JJ., concur with FINCH, J.; RIPPEY, J., dissents in opinion in which LEWIS and CONWAY, JJ., concur.

Judgment affirmed, etc.