Boylhart v. Di Marco & Reimann, Inc.

CourtNew York Court of Appeals
Writing for the CourtCROUCH
Citation270 N.Y. 217,200 N.E. 793
PartiesBOYLHART et al. v. DI MARCO & REIMANN, Inc., et al.
Decision Date03 March 1936

270 N.Y. 217
200 N.E. 793

BOYLHART et al.
v.
DI MARCO & REIMANN, Inc., et al.

Court of Appeals of New York.

March 3, 1936.


Action by Richard Boylhart, by Gertrude Boylhart, his guardian ad litem, and Gertrude Boylhart, individually, against Di Marco & Reimann, Incorporated, and others. From the judgment of the Appellate Division, entered on June 24, 1935, in the office of the clerk of Bronx county, pursuant to the order of the Appellate Division (244 App.Div. 785, 280 N.Y.S. 781) entered on May 17, 1935, in the office of the clerk of the Appellate Division, and entered in the office of the clerk of Bronx county on May 21, 1935, affirming the judgment of the Supreme Court, Bronx county, which dismissed the complaint as to defendant named, and from that part of the judgment only, plaintiffs appeal.

Judgment of the Appellate Division and that of the Trial Term reversed, and verdict reinstated.


[270 N.Y. 217]Appeal from Supreme Court, Appellate Division, First department.

Emil N. Baar, Arthur Block, James E. Whalen, and David E. Winer, all of New York City, for appellants.

270 N.Y. 218]William Dike Reed, of New York City, for respondent.
[270 N.Y. 219]CROUCH, Judge.

The respondent, Di Marco & Reimann, Inc., contracted with the city of New York to construct part of a new subway. Under the contract, portions of the construction work might be sublet to subcontractors approved

[200 N.E. 794

by the city. The steel construction was so sublet to the Rosaire Contracting Company. The contractor was authorized by the city to occupy such portions of the street surface as might be necessary for the storage of materials. Certain steel beams to be used in the structure were stored on a neighboring street, insecurely piled by the subcontractor. The infant plaintiff with two companions were playing ‘follow the leader’ on and around the pile. While standing on the pile the leader ‘wiggled’ the beams, causing several of [270 N.Y. 220]them to roll down the pile and injure the plaintiff. On the trial the plaintiff had a verdict against both the contractor and the subcontractor. Thereafter, the trial judge set aside the verdict and dismissed the complaint as against the contractor. The Appellate Division unanimously affirmed the judgment against the subcontractor and, by a divided court, affirmed the dismissal as to the contractor.

The only question which need be considered is whether the contractor, under the facts here, is subject to liability for the negligence of the subcontractor...

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48 practice notes
  • Tropea v. Shell Oil Company, No. 26981.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 13, 1962
    ...contractor is not liable for the negligent acts of the independent contractor or its employees. Boylhart v. Di Marco & Reimann, Inc., 270 N.Y. 217, 200 N.E. 793 (1936); 2 Restatement, Torts § 409 (1934); Dalton v. Angus & Co., 6 A.C. 740, 829 (1881). However, there are exceptions to......
  • Church v. Callanan Indus.
    • United States
    • New York Supreme Court Appellate Division
    • February 21, 2001
    ...that the dissent does not benefit from the line of cases derived from the Court of Appeals' decision in Boylhart v Di Marco & Reimann (270 N.Y. 217) and standing for the proposition that an owner or contractor has a nondelegable Page 551 duty to "use requisite care" in connect......
  • Eastern Airlines v. JOSEPH GUIDA & SONS TRUCKING, No. 84 CV 3000.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 30, 1987
    ...of the public who were using the roads along the truck's route in the usual and ordinary manner. Boylhart v. DiMarco & Reimann, Inc., 270 N.Y. 217, 200 N.E. 793 (1936); Wright v. Tudor City Twelfth Unit, Inc., 276 N.Y. 303, 12 N.E.2d 307 (1938). Moreover, in order for the work to be inh......
  • Watters v. Arlistico, 2007 NY Slip Op 30344(U) (N.Y. Sup. Ct. 3/20/2007), Index No. 15500/05.
    • United States
    • United States State Supreme Court (New York)
    • March 20, 2007
    ...where the dangerous nature of the work of the contractor creates a defect in the public way. See Boylhart v. Di Marco & Reimann, 270 N.Y. 217, 200 N.E. 793, 794 (1936); Herman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451, 452 (1915). Thus, the landowner is liable if the contractor's r......
  • Request a trial to view additional results
48 cases
  • Tropea v. Shell Oil Company, No. 26981.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 13, 1962
    ...contractor is not liable for the negligent acts of the independent contractor or its employees. Boylhart v. Di Marco & Reimann, Inc., 270 N.Y. 217, 200 N.E. 793 (1936); 2 Restatement, Torts § 409 (1934); Dalton v. Angus & Co., 6 A.C. 740, 829 (1881). However, there are exceptions to......
  • Church v. Callanan Indus.
    • United States
    • New York Supreme Court Appellate Division
    • February 21, 2001
    ...that the dissent does not benefit from the line of cases derived from the Court of Appeals' decision in Boylhart v Di Marco & Reimann (270 N.Y. 217) and standing for the proposition that an owner or contractor has a nondelegable Page 551 duty to "use requisite care" in connect......
  • Eastern Airlines v. JOSEPH GUIDA & SONS TRUCKING, No. 84 CV 3000.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 30, 1987
    ...of the public who were using the roads along the truck's route in the usual and ordinary manner. Boylhart v. DiMarco & Reimann, Inc., 270 N.Y. 217, 200 N.E. 793 (1936); Wright v. Tudor City Twelfth Unit, Inc., 276 N.Y. 303, 12 N.E.2d 307 (1938). Moreover, in order for the work to be inh......
  • Watters v. Arlistico, 2007 NY Slip Op 30344(U) (N.Y. Sup. Ct. 3/20/2007), Index No. 15500/05.
    • United States
    • United States State Supreme Court (New York)
    • March 20, 2007
    ...where the dangerous nature of the work of the contractor creates a defect in the public way. See Boylhart v. Di Marco & Reimann, 270 N.Y. 217, 200 N.E. 793, 794 (1936); Herman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451, 452 (1915). Thus, the landowner is liable if the contractor's r......
  • Request a trial to view additional results

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