50 New Walden, Inc. v. Federal Ins. Co.

• Decision Date: 18 June 1963
• Citation: 39 Misc.2d 460,241 N.Y.S.2d 128
• Court: New York Supreme Court
• Parties: 50 NEW WALDEN, INC. and Thruway Lanes, Inc., Plaintiffs, v. FEDERAL INSURANCE CO., et al., Defendants.

Page 128

241 N.Y.S.2d 128

39 Misc.2d 460

50 NEW WALDEN, INC. and Thruway Lanes, Inc., Plaintiffs, v. FEDERAL INSURANCE CO., et al., Defendants.

Supreme Court, Erie County.

June 18, 1963.

Kavinoky, Cook, Hepp & Sandler, Buffalo, for plaintiffs.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, for the Insurance Co. defendants.

Adams, Smith, Brown & Starrett, Buffalo, for defendants Frank J. Cartwright & Cartwright & Morrison, Inc.

Vaughan, Brown, Kelly, Turner & Symons, Buffalo, for defendant Milton Millstein.

Stevens & Baumeister, Buffalo, for defendant Thomas H. McKaig.

Miles, Cochrane & Grosse, Buffalo, for defendant Cassiol Construction Co.

Little & Burt, Buffalo, for defendant Buffalo Savings Bank.

Nathaniel A. Barrell, Buffalo, for defendant AMF Pinspotters, Inc.

MICHAEL CATALANO, Justice.

The plaintiffs would amend their complaint, without calendar prejudice.

This action is brought to recover substantial damages because of the collapse of the plaintiffs' bowling alley in Cheektowaga, New York. The defendant, Frank J. Cartwright, (herein called 'Frank') was a duly licensed civil engineer, selected by the general contractor, Cassiol Construction Company, Inc., (herein called 'Cassiol') to design, fabricate, erect and install trusses and roofs, and the defendant, Cartwright & Morrison, Inc., (herein called 'Cartwright') was similarly selected.

The amendments would include allegations of implied warranty, viz.:

'SIXTIETH: That at all the times hereinafter mentioned the defendant, Frank J. Cartwright, was and still is duly licensed as a civil engineer by the New York State Department of Education and held himself out to be skilled in all phases of civil engineering work, and in the use, design, fabrication, erection and installation of trusses and roofs. That thereby the defendant, Frank J. Cartwright, impliedly warranted to anyone who might employ the trusses and roofs he so designed, fabricated, erected and installed that said trusses and roofs were of merchantable quality.

'SIXTY-FIRST: That at all the times hereinafter mentioned, the defendant, Cartwright & Morrison, Inc., was and still is engaged in contracting and engineering work and in the work of designing, fabricating, erecting and installing and roofs, and held itself out to be skilled in performing and supervising such work. That thereby the defendant, Cartwright & Morrison, Inc., impliedly warranted to anyone who might employ the trusses and roofs it so designed, fabricated, erected and installed that said trusses and roofs were of merchantable quality.

'SIXTY-THIRD: That Cassiol Construction Company, Inc., selected and retained the defendants, Frank J. Cartwright and Cartwright & Morrison, Inc., to design, fabricate, erect and install the trusses and roof of said building. That the plaintiffs informed and advised the defendants, Frank J. Cartwright and Cartwright & Morrison, Inc., of the particular purpose for which the said trusses and roof were required and that the defendants, Frank J. Cartwright and Cartwright & Morrison, Inc., did design, fabricate, erect and install the said trusses and roof and the plaintiffs relied on the said defendants' skill and judgment as respects the use, design, fabrication, erection and installation of said trusses.'

For many years our statutory law provided, and still provides:

'There is only one form of civil action. The distinctions between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.' (Originally revised from Code of Proc., sec. 69; in Code of Civ.Proc. sec. 3339 without change; Civil Practice Act, sec. 8, same; CPLR, sec. 103(a), effective Sept. 1, 1963.)

As of September 1, 1963, the statutory extension will be:

'If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution.' (CPLR, sec. 103(c).)

For over 100 years our highest court has insisted that regardless of the statutory abolition of all distinctions among mere forms of action, yet actions vary in their intrinsic nature which 'no law can abolish;' (Goulet v. Asseler, 22 N.Y. 225, 228; 1860. See also: Sadlier v. City of New York, 185 N.Y. 408, 414, 78 N.E. 272, 274) and the distinctions between actions ex contractu (from contract) and ex delicto (from delict, tort or crime) are clearly recognized. (Austin v. Rawdon, 44 N.Y. 63, 71; 1870.)

Tort liability has been enforced, without contractual relations between the parties, upon the theory that defendant well knew the purposes for which its manufactured, inherently-dangerous product would be used and could reasonably foresee the danger of injury to the plaintiff. (Statler v. George A. Ray Manufacturing Co., 195 N.Y. 478, 480, 88 N.E. 1063 1064; 1909. See also: MacPherson v. Buick Motor Co., 217 N.Y. 382, 389, 111 N.E. 1050, 1053, L.R.A.1916F, 696; 1916.)

In the MacPherson case (Ibid.), Judge Cardozo, speaking for the court, said, 217 N.Y. at page 390, 111 N.E. at page 1053:

'We are not required, at this time, to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. * * *

'We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.'

In 1911, our legislature added Article 5, 'Sales of Goods,' to the Personal Property Law (L.1911, c. 571.), including section 96, 'Implied warranties of quality,' that provides, in part:

'Subject to the provisions of this article and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

'1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

'2. Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.'

Although nothing in this statute mentions the phrase 'privity of contract,' our highest court thereafter held:

'The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty, who have no contractual relations with him. The reason for this rule is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty.' (Chysky v. Drake Brothers Company, Inc., 235 N.Y. 468, 472, 139 N.E. 576, 578, 27 A.L.R. 1533; 1923.)

In 1931 Chief Judge Cardozo observed:

'The assault upon the citadel of privity is proceeding in these days apace. How far the inroads shall extend is now a favorite subject of juridical discussion (authorities omitted). In the field of the law of contract there has been a gradual widening of the doctrine of Laurence v. Fox, 20 N.Y. 268, until today the beneficiary of a promise, clearly designated as such, is seldom left without a remedy. Seaver v. Ransom, 224 N.Y. 233, 238, 120 N.E. 6392 A.L.R. 1187.' (Ultramares Corp. v. Touche, 255 N.Y. 170, 180-181, 174 N.E. 441, 445, 74 A.L.R. 1139.)

Shortly thereafter, the Court of Appeals stated: 'The requirement of some obligation or duty running from the promisee to the third party beneficiary has been progressively relaxed until a mere shadow of the relationship suffices, if indeed it has not reached the vanishing point.' McClare v. Mass. Bonding & Ins. Co., 266 N.Y. 371, 379, 195 N.E. 15, 17.)

Chief Judge Desmond, speaking of the privity rule, said:

'But the present rule which we are being asked to modify is itself of...