Howard Stores Corp. v. Pope

• Citation: 1 N.Y.2d 110,134 N.E.2d 63,150 N.Y.S.2d 792
• Parties: , 134 N.E.2d 63 HOWARD STORES CORPORATION et al., Appellants, v. Clarence POPE, Doing Business as Colonial Service Floor Scraping and WaxingCompany, et al., Defendants, and Prospect Floor Supply Co., Inc., Respondent.
• Decision Date: 19 April 1956
• Court: New York Court of Appeals

Page 792

150 N.Y.S.2d 792

1 N.Y.2d 110, 134 N.E.2d 63

HOWARD STORES CORPORATION et al., Appellants, v. Clarence POPE, Doing Business as Colonial Service Floor Scraping and WaxingCompany, et al., Defendants and Prospect Floor Supply Co., Inc., Respondent.

Court of Appeals of New York.

April 19, 1956.

Howard E. Levitt and Sidney N. Zipser, New York City, for appellants.

Mark L. Giller and Stanley B. Dreyer, New York City, for respondent.

DESMOND, Judge.

The several plaintiffs, being the tenant and the owners, respectively, of a building in Manhattan which was damaged by fire in 1954, appeal as of right from a judgment entered on a unanimous order of the Appellate Division, First Department which reversed a Special Term order. The latter order had denied a motion made by defendant-respondent Prospect (the other defendants did not move) to dismiss this second amended complaint as to Prospect. The Appellate Division's reversing order and judgment dismissed the complaint as to Prospect for insufficiency. Special Term's memorandum said: 'Sufficient causal connection has now been alleged between the moving defendant's claimed negligence and the spread of fire.' The Appellate Division's memorandum, however, says that the complaint lacks any allegation that defendant Pope, who was a contractor scraping and refinishing a floor in the premises, 'because of ignorance on his part of the inflammatory nature of the material, was induced to forego precautions that he would have taken had the cans been properly labeled'. 1 A.D.2d 659, 146 N.Y.S.2d 363, 364. The Appellate Division memorandum points out that this defect had twice before been pointed out by the courts but, according to the memorandum, the deficiency has not been cured in this third complaint. The pleading we have before us is the second amended complaint, two earlier pleadings having been dismissed for insufficiency.

The complaint alleges that the plaintiffs other than Howard owned the building and that Howard conducted a retail shop therein; that defendant Prospect was on the business of selling paints, varnishes and similar materials for use on wooden floors; that defendant Lacquer Corporation was the manufacturer and distributor of the materials used by Prospect, and that on or about September 22, 1954, defendant Pope was working at these premises scraping and refinishing a floor; that in the course of that operation, according to the complaint, Pope used materials purchased from defendant-respondent Prospect and manufactured and distributed by defendant Lacquer. Paragraph 6 says that these materials were of an extremely volatile and combustible nature which defendants Prospect and Lacquer knew or should have known. Paragraph 7 says that defendants Prospect and Lacquer negligently and in violation of law and custom manufactured and sold these materials without giving any notice of their highly volatile and combustible nature, and without giving notice that they should be stored in a safe place and not exposed to dangerous elements such as electric wiring. Paragraph 8 of the complaint says that it was the custom and standard of manufacturers, distributors and retailers of such materials and was required by the rules and regulations of the New York City Fire Department that there be affixed to containers of such materials a notice of their volatile and inflammatory nature and instructions as to their use and storage. We note at this point that although the complaint does not so allege, appellants' brief cites three provisions of the New York City Administrative Code, all in title C of chapter 19 thereof, which apparently require that every container of combustible materials sold in New York City must bear warning labels. §§ C19-53.0 subd. c, C19-59.0, subd. c, C19-62.0. Paragraph 9 of this complaint says that defendants Prospect and Lacquer knew or should have known of this dangerous condition and knew or should have known that the contents of the cans were to be used in connection with other materials and would be stored and left with those other materials and that defendants Prospect and Lacquer should have foreseen and anticipated 'that because of the inherently dangerous content of the cans * * * users therof did not have knowledge of the dangerous substances contained in the cans'. Paragraph 10, alleging that Prospect and Lacquer failed to annex danger notices to the cans, is a repetition of earlier statements.

We now quote in full paragraph 11 of the second amended complaint because we think that it contains the allegation which the Appellate Division stated was missing, that is, an allegation that the decorating contractor Pope, because of ignorance of the nature of the material, omitted precautions he otherwise would have taken: '11. Because of the aforesaid, the contents of the cans were negligently used and stored by the defendant, Pope in that he did not possess the proper notice or warning needed and necessary in using and storing the said cans, and upon information and belief that had the defendant Pope been given sufficient warning, knowledge and notice of the contents of the cans which the defendants Prospect and Lacquer possessed, he would have applied and stored the contents carefully and prudently rather than in the negligent manner he did.'

We proceed with the analysis of the complaint. Paragraph 12 says...