Burke v. Ireland

• Decision Date: 26 March 1901
• Citation: 166 N.Y. 305,59 N.E. 914
• Parties: BURKE v. IRELAND et al.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 305

59 N.E. 914

BURKE

v.IRELAND et al.

Court of Appeals of New York.

March 26, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Bridget Burke, as administratrix of John Burke, deceased, against John B. Ireland, impleaded with John H. Parker and another. From a judgment of the appellate division (62 N. Y. Supp. 453) affirming a judgment of the special term in favor of plaintiff, defendant Ireland appeals. Reversed.

Charles F. Brown, for appellant.

Charles J. Patterson, for respondent.

O'BRIEN, J.

The judgment in this case imputes personal negligence to the defendant Ireland, resulting in the death of the plaintiff's intestate. The important question presented by the appeal is whether this conclusion is justified by the undisputed facts. It is insisted among other things, on behalf of the defendant who has appealed from the judgment, that the recovery has been had upon different grounds than those alleged in the complaint; and also it is contended that there should be a reversal upon exceptions taken to the refusal of the learned trial judge, at the request of the defendant's counsel, to charge certain propositions of law. In the view which we are inclined to take of the case, it is not necessary to consider these points of the argument, since, if there were any facts established for the consideration of the jury, we would not be disposed to interfere with the judgment upon any nice questions of practice, or to subject the charge and the requests to a very close analysis; for in the main the proceedings at the trial, including the charge, were regular, and, it may be, so far as these exceptions are concerned, correct. The real question is whether there was any proof in the case which could justify the finding by the jury of personal negligence on the part of the defendant which was the proximate cause of the accident. If there was not, the other questions in the case are of no importance.

On the 8th day of August, 1895, the plaintiff's husband, the intestate, was killed while engaged at his occupation as a plasterer upon a building which was being erected by the defendant. The deceased at the time of his death was in the employ of a subcontractor who had charge of that part of the work. It appears from the record that the defendant was the owner of a plot of land on the northeast corner of West Third street and West Broadway, in the city of New York, and during the latter part of the year 1894 he resolved to erect a large commercial building thereon, eight stories in height. He employed a competent architect to draw the plans for the building, with the necessary specifications, which were submitted to and approved by the building department of the city after an examination of the land upon which the building was to be erected, in connection with the plans. There is no suggestion in the record that this architect was incompetent to perform the duty for which he had been employed. The defendant then entered into a contract with a party to excavate the cellar for the building, and into another contract with a competent builder to erect the building for a stated price. Both of these contractswere in writing, and appear in the record. In each of them it was provided that the work should be done according to the plans and specifications of the architect, which were made a part of the contract; and it was stated that ‘the specifications and drawings are intended to co-operate, so that any works exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed the same as if it were mentioned in the specifications and set forth in the drawings to the true meaning and intention of the said drawings and specifications, without any extra charge whatsoever,’ and the same provision was inserted as a general condition in the specifications. The contract for the excavation required the contractor to do all digging and grading in time so as not to delay the other mechanics, agreeably to the drawings and specifications, and to the satisfaction and under the direction of the architect, and to provide such good and proper materials as should be sufficient for completing and finishing the digging mentioned in the mason's specifications. The builder contracted to erect the building according to the plans, elevations, specifications, and drawings made by the architect, which were made part of the contract. When the defendant made application to the building department for permission to erect the building, the drawings and plans accompanied the application, and were filed with and approved by the building department, after a careful examination by their inspectors and experts, before the contracts referred to had been executed. The contract bound the builder to comply with all laws and corporation ordinances concerning the construction of buildings, and the rules and regulations of the building department. It was provided that in case the owner should at any time during the progress of the work request any alteration, deviation, additions, or omissions from the contract, he should be at liberty to do so, and the same in no way should affect or make void the contract, but should be added to or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation. Under this provision the owner, some time after the erection of the building had been commenced, added an additional story to the building. The original plans and specifications contemplated a building seven stories in height, but with this modification a change was made for a building eight stories high.

The provision of the contract which has a direct and immediate bearing upon this case is that relating to the laying down of concrete work. It was provided that ‘no concrete shall be laid in trenches until the same has been examined by the architect, as concrete must not be laid on a disturbed bottom.’ It is plain that the contract, plans, and specifications must be read together, as they constitute the contract in its entirety, and that when thus read it is clear that the builder was bound to lay the concrete for the foundations on a solid or undisturbed bottom. The cause of the accident which resulted in the death of the plaintiff's intestate is not open to any doubt, upon the undisputed proof in the case. The plans and specifications required that through the center of the building, from north to south, there should be a row of five iron columns, intended to support the beams and girders. These columns rested upon an iron base laid upon a cutstone block, and the whole rested upon a concrete foundation 9 or 10 feet square. In digging the trench or space for the concrete foundation under the central column, the workmen came upon an old circular cistern, which had been previously covered up, and it was unknown to any of the parties. The builder's foreman directed the men to take two rows of bricks off, and straighten the wall so as to make the trench over the wall as low as that part outside of it. He then cleaned out a part of the cistern, in which the concrete foundation would come, according to the plans. The foundation for this column was then laid partly in the old cistern, partly upon the natural earth outside of the cistern, and partly upon the cistern wall. That part outside of the cistern and that part upon the wall was 12 inches thick, and that part within the cistern was 28 inches thick, and rested upon the brick bottom of the cistern, which was 16 inches lower than the bottom of the concrete outside of the cistern wall. When the foundationfor the...