Langner v. Jessup Holding Inc.

Memorandum by the Court.

Judgment modified, on the law and on the facts, to the extent of reversing that part thereof which grants judgment in favor of defendant Maintenance Company, Inc., on its cross claim against the defendant Jessup Holding, Inc., and to provide for the dismissal thereof, without costs in favor of one as against the other, and otherwise affirmed, with costs to the plaintiffs against both defendants. The verdict of the jury on the main complaint as against both defendants is amply supported by the evidence. There is sufficient to support a finding that at the time of the accident the elevator was in a defective and dangerous condition and that both defendants knew or should have known that to be so. The long history of shut-downs and the continuous calls for repairs up to the time of the accident together with the repeated recommendations for replacement of defective worn parts supports such a finding. The owner was fully aware from the history of this elevator’s performance, that it was not in good working order. Likewise, it was fully aware of the necessity for replacing defective parts and, although it called for an estimate for such work, it failed to order the work done. Included in such proposed replacements was a new controller and seleeter. Upon the evidence the jury could very well have come to the conclusion that the accident was caused by the defective selector which the owner failed to replace. The owner, Jessup Holding, Inc., therefore, was guilty of primary or active negligence and its cross claim against Maintenance Co., Inc., was accordingly properly dismissed. The defendant, Maintenance Co., Inc., was likewise guilty of such negligence. Under its contract it was obliged to inspect the elevator and to make necessary adjustments and certain repairs. As conceded by its superintendent of elevator service, it was under the duty to “ shut down the service ” if the elevator was found not to be in good working order — or at least to recommend that service be shut down. That it failed to do. That it undertook that duty is further demonstrated by the various reports which expressly indicate its decision to allow the car to remain in service from time to time after repairs and inspections had been made. Having undertaken to determine when to allow the car to remain in service, it had the corresponding obligation to decide when it should be shut down if it found the elevator to be unsafe. Failing to do that in the circumstances, therefore, supports a finding that it too was guilty of primary or active negligence. The exculpatory clause in the contract between the parties will not serve to sustain its cross claim against the defendant Jessup Holding, Inc. It comes within section 235 of the Real Property Law which makes such an agreement ‘ ‘ void as against public policy and wholly unenforceable.”