Nichols v. Clark, MacMullen & Riley, Inc.
| Citation | 261 N.Y. 118,184 N.E. 729 |
| Parties | NICHOLS et al. v. CLARK, MacMULLEN & RILEY, Inc., et al. |
| Decision Date | 28 February 1933 |
| Court | New York Court of Appeals |
Action by J. Brooks Nichols and another against Clark, MacMullen & Riley, Incorporated, the Celotex Company, and others. From an order of the Appellate Division (235 App. Div. 718, 255 N. Y. S. 956), affirming an order denying last-named defendant's motion to vacate an order joining it as a party defendant, such defendant appeals, and Appellate Division certifies question.
Certified question answered, and orders reversed and motion granted.
The following question was certified:
‘Should the court have vacated the order joining the defendant-appellant as an additional party pursuant to subdivision 2 of section 193 of the Civil Practice Act?’
Appeal from Supreme Court, Appellate Division, First Department.
Albert Stickney, Francis S. Bensel, and Hersey Egginton, all of New York City, for appellant.
William W. Lancaster and J. A. Stevenson, Jr., both of New York City, for respondents.
The Appellate Division has certified to this court the following question: ‘Should the court have vacated the order joining the defendant-appellant as an additional party pursuant to subdivision 2 of section 193 of the Civil Practice Act?’
The defendants made a motion to bring in the Celotex Company on the ground that that company would be liable to them for the claim of the plaintiffs; in other words, that the Celotex Company would be liable over on the judgment roll for any damages recovered by the plaintiffs on the cause of action set forth in the complaint. The motion was granted ex parte, and thereafter the Celotex Company made application on affidavits and notice to vacate and set aside the order. The denial of this latter motion having been affirmed by the Appellate Division, the order is here for review upon the certification above quoted.
Two reasons move us to reverse these orders and dismiss the Celotex Company from the case. The complaint sets forth a cause of action against engineers for defective plans and work in connection with the reconstruction of a heating system in the plaintiffs' house in Convent, Morris county, N. J., whereby a fire destroyed the house and contents. The defendants are consulting engineers. The charge against them in the complaint reads as follows:
As we are analyzing the charge against these defendants note must be taken at this point that the negligence here charged is in the use of ‘Celotex.’ The Celotex Company has been brought in by these defendants as it is the manufacturer of ‘Celotex’ and in the defendants' supplementary pleading or answer served upon the Celotex Company the charge is made that it represented the fireproof qualities of this ‘Celotex,’ and, therefore, would be liable over to the defendant engineers, who recommended it to the plaintiffs on the strength of these representations. More will be said about these supplemental pleadings hereafter, but at this point we desire to press the continuity of the complaint of the plaintiffs and the complaint of the supplemental answer against the Celotex Company, based upon the inadequacy of ‘Celotex’ as a covering. Paragraph 7 of the complaint, which we have just quoted, predicates the negligence of the engineers upon the use of ‘Celotex,’ and the defendants have pleaded over against the manufacturer upon the ground that if they are mulcted in damages for using ‘Celotex’ the Celotex Company would be liable to them on its representations regarding the merits of the covering. So far so good, and if this were all of the plaintiffs complaint we would have no occasion for this analytical statement.
The complaint, however, goes much further, and charges the defendants in the same cause of action with negligence, for which the Celotex Company can in no way be responsible. The eleventh paragraph says that the fire was not only caused through the recommendation of ‘Celotex’ as a covering for the hot air ducts and warm air distributing piping, but continues, with this further allegation of negligence: ‘Said fires were further caused by the negligent, improper and wrongful recommendations, plans and specifications, drawings and blue prints prepared by the defendant Clark, MacMullen & Riley, Inc., and defendants Charles W. MacMullen, Champlain L. Riley and Arthur B. Jones, in that the entire heating equipment or heating plant was so designed therein as to be unsafe and highly dangerous in the normal use thereof, all of which the defendant knew or should have known.’ Surely the Celotex Company is not liaible to the engineers because the fire was due to their improper plans showing that the entire heating equipment or heating plant was so designed as to be unsafe and highly dangerous. All these allegations are containedin one cause of action. Upon the trial, the proof may go in under any of the allegations, for some of which the ‘Celotex’ might be responsible, and for some of which the engineers solely responsible. A judgment against these defendants, engineers, upon such allegations would not be binding upon the Celotex Company, or, to state it more accurately, the Celotex Company would not be liable over to the engineers on a judgment recovered against them based upon such proof. There is nothing in the record to show that a judgment will ever be entered solely for damages caused by the use of ‘Celotex.’ For this reason, if no other, the Celotex Company should not have been made a party defendant upon the motion of the principal defendants. Section 193, subdivision 2, relates to those causes of action wherein a person not a party to the action will be liable over to the defendant for the judgment or part of the judgment recovered by the plaintiff against him. The Celotex Company would not be liable over to these defendants for any part of a judgment recovered by the plaintiffs, as, under the allegations in the complaint, the judgment could be, or might be, based entirely or in part upon the sole negligence of the engineers, having nothing to do with ‘Celotex.’ Fox v. Western New York Motor Lines, Inc., 257 N. Y....
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