Lawless v. Board of Education , 180 N.Y.S.2d 220 ( 1958 )

Foster, P. J.

This is an appeal by a third-party defendant from an order of the Supreme Court which denied a motion to dismiss a third-party complaint upon the ground that it failed to state facts sufficient to constitute a cause of action (Rules Civ. Prac., rule 106, subd. 4).

A statement as to the relationship of the parties is necessary for an understanding of the issues involved. The defendant Board of Education was having a new schoolhouse built for a Central School District. One O’Connell, Inc., was the general contractor and required, among other things, to construct, maintain and repair the foundation walls. One Van Etten was the electrical contractor and required to install electrical wiring and openings. Each had a separate contract with the Board of Education and no contractural obligations existed between them. Lawless, plaintiff in the main action against the Board of Education and Van Etten, was an employee of O’Connell, Inc., and he alleges that he sustained personal injuries as a result of a fall he suffered when a foundation wall crumbled beneath him as he was walking along it. He further alleges that Van Etten was negligent and responsible for his injuries because an employee of Van Etten, one Kerwan, removed a portion of the foundation wall in connection with running and placing certain electrical conduits, and in restoring and repairing the wall thereafter left the same in a defective and dangerous condition.

Van Etten is the third-party plaintiff and he seeks to recover over against the defendant O’Connell, Inc., in the event of a recovery against him. Stripped of its legal conclusions his complaint alleges that O’Connell, Inc., under its general contract, was obliged to supply recessed openings and chases in the foundation wall for electrical conduits and to restore the foundation wall after the conduits were installed. In his pleading he concedes that such work was done by his own employee Kerwan, but alleges that for such purposes Kerwan became the ad hoc employee of O’Connell, Inc.

On the basis of the foregoing we do not think that this is a proper case for pleading liability over by way of a third-party complaint. If the allegations of the third-party complaint are accepted on their face, Kerwan was not acting as Van Etten ’a employee when he prepared the foundation wall for electrical conduits and restored the wall after the same were laid, and if such is the fact then the doctrine of respondeat superior is not applicable to Van Etten and he would not be liable. In the cases dealing with the concept of ad hoc servants, we find none in which the courts have taken the view that an employer is liable for the acts of an employee who has become the ad hoc servant of another for a specific work — except in some compensation cases that are not applicable to common-law liability. Even the cases cited by respondent do not sustain such a theory, in fact they indicate to the contrary that the test is who was the employer at the time the work was being done (Ramsey v. New York Cent. R. R. Co., 269 N. Y. 219; Irwin v. Klein, 271 N. Y. 477). Control is perhaps the most important element to be considered. If the general employer retains control of his employee, he remains liable for his acts even though the latter may be doing the work of another. It is only when the employee is no longer under the control of the general employer, so that the relationship of master and servant is suspended, that the special employee becomes liable for his acts (Cannon v. Fargo, 222 N. Y. 321).

We therefore take a rather dim view of the third-party complaint so far as the foregoing principles are concerned. Concededly Kerwan was an employee of the third-party complainant and on his payroll; and we find no direct allegation that he was not under the control of the complainant, or had abandoned his employment at the time he did the work on the foundation wall. The allegation that he became the employee of the general contractor O’Connell, Inc., is merely a conclusion, not supported by any factual allegation except that the general contractor had the duty, under his contract, to properly prepare, maintain and restore the foundation wall. This was not sufficient as a matter of pleading, in our opinion, to destroy the presumption that Kerwan remained under the control and direction of his employer Van Etten. Under the situation disclosed by the pleadings the mere allegation that the general contractor had a duty to perform under his contract does not meet the issue, and indeed begs the question of the doctrine of respondeat superior as to Van Etten and his employee. It may well be that both O’Connell, Inc., and Van Etten were guilty of negligence, active and not passive, and hence were joint tort-feasors in pari delicto, but on such an assumption Van Etten has no claim over against O’Connell, Inc.; and the plaintiff Lawless of course cannot sun his own employer so that if he has an action it. can only be against Van, Etten (Putvin v. Buffalo. Elec. Co., 3 A D 2d 805; Labate v. Fort Tryon Apts., 2 A D 2d 960; Focassi v. City of New. York, 14 Misc 2d. 277).

The order should be reversed and the motion to dismiss the third-party complaint granted,