Besner v. Cent. Trust Co. of New York

• Decision Date: 01 March 1921
• Citation: 230 N.Y. 357,130 N.E. 577
• Parties: BESNER v. CENTRAL TRUST CO. OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 357

130 N.E. 577

BESNER

v.CENTRAL TRUST CO. OF NEW YORK et al.

Court of Appeals of New York.

March 1, 1921.

Action by Lena Besner, as administratrix of Benjamin Besner, deceased, against Augustus D. Juilliard and another, in which the Central Trust Company of New York and others, as executors and trustees of the last will of the named defendant, were substituted as defendants. A judgment for the plaintiff entered upon verdict of the jury was affirmed by the Appellate Division, two of the justices dissenting (189 App. Div. 930,178 N. Y. Supp. 879), and the named defendants appeal.

Affirmed.

Hiscock, C. J., and McLaughlin and Andrews, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Bertrand L. Pettigrew and Walter L. Glenney, both of New York City, for appellants.

Leon Sanders and Jacob Zelenko, and Moses Feltenstein, all of New York City, for respondent.

CRANE, J.

Augustus D. Juilliard in March, 1916, was the owner of a six-story mercantile building on the north side of Grand street between Broadway and Crosby street in the borough of Manhattan, city of New York. After the trial of this case Juilliard died, and an order was made by the Appellate Division substituting the executors and trustees of his estate as defendants. In this opinion they will be referred to as the owner. The various floors of the building were rented to separate tenants. The owner furnished these tenants with passenger and freight elevator service. There was one passenger and one freight elevator for the use of all the tenants which it was the duty of the owner landlord to maintain and run for their benefit. This was part of the obligation which he assumed in renting the premises.

The owner, however, did not operate and run these elevators directly by his own employees, but had a yearly contract with the defendant the Edward Engineering Company to do this work.

By the agreement dated March 26, 1913, the Edward Engineering Company agreed to furnish one engineer to supply the necessary steam, one elevator attendant in uniform to operate the passenger elevator, and one freight elevator attendant to operate from 7:45 a. m. to 12 m., legal holidays excepted. A woman was also to be provided to clean the entrance, halls, and stairs daily. The company further agreed to keep in thorough order the boilers, pumps, and electric elevators.

This contract was renewed from year to year and under it the engineering company was operating the elevators on March 12, 1916.

Prior to that date and in April of 1915, the department of labor had directed the owner to comply with the requirements of chapter 36 of the Laws of 1909, as amended (Labor Law [Consol. Laws, c. 31]), by providing, among other things, self-closing gates of a suitable height or properly constructed sliding doors at all openings in the freight elevator shaft, including the cellar.

The contract to do this work was given to the Steven M. Smith Company, which sublet it to the National Sash & Door Company.

About the 1st of March the latter company sent two of its employees, of whom Benjamin Besner, the deceased, was one, to the building in question to install the fireproof or sliding doors under its contract with the Smith Company. The doors were manufactured outside of the premises; the work of the plaintiff's intestate and his helper being simply to install them.

In doing this work it was necessary for the workman to enter a portion of the freight elevator shaft at times. For this purpose they stood upon the floor of the elevator opposite the floor of the building on which they happened to be working. At other times it was necessary for them to stand upon the floor of the building and lean over into the elevator well or shaft.

During the two weeks in which this work was in progress the freight elevator was necessarily in use by the tenants on the respective floors. The owner had agreed to run this elevator for their requirements, and for this he was paid by the rental. Two things were, therefore, going on in the elevator shaft at the same time, the owner's service of running the freight elevator for his tenants and the work of installing the elevator doors which Besner, the deceased, and his helper were doing for the owner.

Besner's work necessarily involved much danger from the operation of the elevator. An arrangement was therefore made with the elevator operator to stop his car before reaching the place where the men were at work or to give notice of its descent. In this way the two classes of work had been carried on in safety until March 12th, the day of the accident.

On that day Besner was at work alone upon the doors fixing and adjusting the locks, which were only a few inches from the edge of the elevator shaft. The work required him to lean over into the shaft. While thus at work upon the main floor a shipment of 500 paper boxes came for one of the tenants occupying an upper floor. The boxes were loaded upon the elevator, the operator called, and the elevator started. When it had reached the third or fourth floor the operator suddenly reversed the power and lowered the elevator without any notice or warning, striking Besner, who was a work on the lock on the first floor, throwing him into the shaft and causing his death.

The negligence of the elevator man is not questioned, and from the judgment against his immediate employer, the Edward Engineering Company, no appeal has been taken. An appeal has been taken, however, by the owner from the judgment which held him liable together with his contractor, the engineering company.

Was he liable for this negligence of the freight elevator operator?

[1] If Besner had been a tenant of the owner, an employee of the tenant, or a person using the elevator as an invitee of a tenant there would be no question of the owner's liability. The landlord's duty to provide proper elevator service could...