Brady v. Stanley Weiss & Sons, Inc.

• Decision Date: 10 July 1958
• Citation: 175 N.Y.S.2d 850,6 A.D.2d 241
• Court: New York Supreme Court — Appellate Division
• Parties: Coleen BRADY, an infant, by Marion Brady, her guardian ad litem, Plaintiff, v. STANLEY WEISS & SONS, INC., Defendant-Respondent, and Genuine Auto Parts Corp., Moses A. Goldenson and Edith Goldenson, Defendants-Appellants.

Page 850

175 N.Y.S.2d 850

6 A.D.2d 241

Coleen BRADY, an infant, by Marion Brady, her guardian ad litem, Plaintiff, v. STANLEY WEISS & SONS, INC., Defendant-Respondent, and Genuine Auto Parts Corp., Moses A. Goldenson and Edith Goldenson, Defendants-Appellants.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1958.

Foley & Scalzo, Utica, for defendants-appellants (Nathan J. Siegel, Utica, of counsel).

Tucker & Bisselle, New Hartford, for defendant-respondent (Morgan F. Bisselle, New Hartford, of counsel).

Before McCURN, P. J., and KIMBALL, WILLIAMS, GOLDMAN and HALPERN, JJ.

HALPERN, Justice.

This is an appeal from an order dismissing a cross complaint by the defendants-appellants against the defendant-respondent.

The basic factual situation, as alleged in the complaint, was as follows:

The defendants Goldenson were the landlords and the defendant Genuine Auto Parts Corp. was the tenant of certain property in the city of Utica. The tenant contracted with the defendant Stanley Weiss & Sons, Inc., for the tarring of the roof of the building on the premises. In the course of this work, the roofing contractor placed a large kettle used for the production of hot tar, in the yard adjoining the building. At the end of their day's work, on September 26, 1956, at about 4:30 P.M., the employees of the roofing contractor left the premises and negligently 'fail[ed] to turn off the cock of the hot tar kettle'. As a result, hot tar flowed out of the kettle into the yard. Some time later the same day, the plaintiff, a child eight years of age, lawfully entered upon the premises and stepped into the hot tar and fell into it, suffering injuries to her right foot and leg.

The complaint charges that the owners and the tenant of the premises were negligent 'in failing to take any precautions to avoid an accident or injuries to persons lawfully on the premises' and in failing to 'advise them of any dangerous situation created by the hot tar kettle; in failing to erect or post any signs warning users of the yard of the hot tar kettle and the hot tar flowing therefrom', and 'in failing to take any precaution to see to it that the employees of the defendant, Stanley Weiss & Sons, Inc., properly safeguarded the quipment stored on the premises'.

There is no specific allegation of knowledge on the part of the defendant owners and the tenant of the dangerous condition created by the negligence of the defendant roofing contractor but it may reasonably be inferred that the plaintiff intended to charge that those defendants knew or should have known of the condition since there could be no charge of negligence against them unless they had had either actual or constructive notice of the condition.

In their answer, the defendant owners and tenant denied the material allegations of the complaint and interposed a cross complaint under section 264 of the Civil Practice Act against the defendant roofing contractor. They repeated the material allegations of the complaint and then alleged that, if they were held liable to the plaintiff, it would be for passive negligence in failing to warn of a dangerous condition created by the active negligence of the roofing contractor.

The Special Term dismissed the cross complaint as insufficient in law, with leave to amend. This, we believe, was error. 'This case would seem to present a classic instance of a right of recovery over, against a primary wrongdoer whose misconduct had created a dangerous condition, by one who was held liable for failure to discover and remedy [here, warn of] the danger'. Ruping v. Great Atlantic & Pacific Tea Co., 283 App.Div. 204, 206, 126 N.Y.S.2d 687, 689.

Under the allegations of the complaint, the plaintiff may succeed in obtaining a recovery against the defendants-appellants, the owners and tenant, or either of them, on the ground that they should have discovered the dangerous condition created by the roofing contractor, prior to the plaintiff's entry upon the premises, and should have warned her of it. If there is a recovery against the defendants-appellants on this basis, they will be entitled to a recovery over against the roofing contractor.

Of course, it is possible that, within the broad allegations of the complaint, the proof upon the trial may show, not only constructive notice on the part of the defendants-appellants, but actual notice. If that turns out to be the fact, the defendants-appellants may be chargeable with acquiescence in the continuation of the condition or with active participation in the wrong and may then be found to be in pari delicto with the original wrongdoer. In that case, they may be barred from recovering indemnity (O'Dowd v. American Surety Co. of New York, 3 N.Y.2d 347, 354, 165 N.Y.S.2d 458, 462; Ruping v. Great Atlantic & Pacific Tea Co., supra; Stabile v. Vitullo, 280 App.Div. 191, 112 N.Y.S.2d 693; Restatement of Restitution, § 95).

The determination of this question must await the resolution of the factual issues upon the trial. The fact that the complaint may be construed as charging active as well as passive negligence does not warrant the dismissal of the cross complaint (Goodrich v. First National Bank of Olean, 11 Misc.2d 583, 132 N.Y.S.2d 678, affirmed In re Goodrich's Estate, 285 App.Div. 849, 137 N.Y.S.2d 641; Galka v. City of Albany, 285 App.Div. 27, 135 N.Y.S.2d 249; Ellithorp v. Adams-Rice Construction Co., 281 App.Div. 917, 119 N.Y.S.2d 776; Schellhorn v. New York State Electric & Gas Corp., 283 App.Div. 678, 127 N.Y.S.2d 182). Not until the trial, can it be determined whether the plaintiff's recovery, if any, will be based on a finding of active or of passive negligence. A cross complaint is sufficient on its face, if the factual situation alleged is such that the answering defendant may be held liable to the plaintiff on a ground or theory which would entitle the defendant to be indemnified by a codefendant (Ruping v. Great Atlantic & Pacific Tea Co., supra; McFall v. Compagnie Maritime Belge (Lloyd Royal) S. A., 304 N.Y. 314, 107 N.E.2d 463; Tipaldi v. Riverside Memorial Chapel, Inc., 273 App.Div. 414, 78 N.Y.S.2d 12, affirmed 298 N.Y. 686, 82 N.E.2d 585). 'The right to indemnification may be predicated upon any version of the accident permitted by the pleadings'. Weisman v. Hyams, 5 A.D.2d 1000, 1001, 173 N.Y.S.2d 396, 398.

The fact that the defendants, in their answer, deny any liability to the plaintiff does not bar a claim over for indemnity. If it did, there could hardly ever be a well-pleaded case of indemnity, since the defendants, for their own protection, will almost always deny all the allegations of negligence in the complaint. There is no rule of law which prevents a defendant from denying the allegations of the complaint and then pleading that, if he is nevertheless held liable to the plaintiff, it will be on a ground that entitles him to recovery over against another defendant. Such hypothetical pleading is the only way in which sections 264 and 193-a of the Civil Practice Act can properly be utilized.

The factual situation is sufficiently alleged in the cross complaint by reference to, and reiteration of, the allegations of the complaint. A cross complaint may be dismissed as consisting solely of conclusory allegations, if the factual situation giving rise to the right of indemnity does not sufficiently appear from the complaint and cross complaint, but where the factual situation is fully set forth in the complaint, the cross complaint need only repeat it or refer to it.

Of course, if the complaint alleges a factual situation in which the defendant could not be held liable at all unless it was guilty of active or primary negligence, there can be no basis...