Campbell v. McNulty Bros.

• Decision Date: 29 May 1914
• Parties: MARTIN CAMPBELL, Appellant, v. MCNULTY BROTHERS, a Corporation, Respondent, Impleaded with THOMAS & BUCKLEY HOISTING COMPANY, a Corporation, Defendant.
• Court: New York Supreme Court

162 A.D. 685

148 N.Y.S. 73

MARTIN CAMPBELL, Appellant, v. MCNULTY BROTHERS, a Corporation, Respondent, Impleaded with THOMAS & BUCKLEY HOISTING COMPANY, a Corporation, Defendant.

Supreme Court of New York, First Department.

May 29, 1914

APPEAL by the plaintiff, Martin Campbell, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 15th day of January, 1914, upon the dismissal of the complaint as to the respondent by direction of the court at the close of plaintiff's case.

COUNSEL

Ernest G. Stevens of counsel [Edward W. Beattie, Jr., attorney], for the appellant.

Edward F. Lindsay of counsel [James B. Henney, attorney], for the respondent.

CLARKE, J.:

The complaint alleges that the George A. Fuller Company was the general contractor for the erection of the new post office building at Thirty-first street and Eighth avenue; that the defendant Thomas & Buckley Hoisting Company had a contract with said Fuller Company providing for the installation and operation of one or more elevators or hoists to be used by the various sub-contractors in the construction of said building, and had installed and was operating an elevator or hoist and the machinery connected therewith; that the defendant McNulty Brothers had a contract with the said Fuller Company for the plaster work and was engaged in the performance of said work; that plaintiff was on June 25 1912, in the employ of McNulty Brothers as a plasterer's helper, his duties consisting of unloading from said elevator car or hoist quantities of construction material and of distributing the same on the various floors for use by the plasterers, and that plaintiff was directed and required by said McNulty Brothers to use and ride on said elevator car or hoist in the performance of his work; that while plaintiff was in such employ and engaged in the performance of his said work, and for that purpose, while riding with a fellow-employee upon said elevator car or hoist, and without fault or negligence on his part said car or hoist without notice or warning dropped headlong with the greatest violence to the cellar of said building, a distance of about four stories, carrying both men and a quantity of building material with it; that said accident was due to a defective condition of the brake band on the hoisting engine operated in connection with said elevator car or hoist and by means of which it was raised and lowered; as a result of which defective condition said brake band broke without notice or warning to plaintiff, through and by reason of the fault carelessness and negligence of defendants, their agents servants and employees. There was a written stipulation by which McNulty Brothers admitted that at the time of the accident they were using the hod hoist for raising material through the permission of the general contractor, which hoist was installed and operated by the Thomas & Buckley Hoisting Company pursuant to agreement with the George A. Fuller Company, and that McNulty Brothers were charged by the George A. Fuller Company for said use and paid for same.

On the opening the court dismissed the complaint as to McNulty Brothers, upon its motion, and then a juror was withdrawn, as none of the parties cared to go on as against the Thomas & Buckley Hoisting Company alone until the question of the liability of the plaintiff's immediate employer, McNulty Brothers, was settled.

At the time of the trial the judgments in the following cases had been made and stood unreversed, and it was upon them that the learned trial court granted the motion.

In Bohnhoff v. Fischer (149 A.D. 747) one Kennedy was the general contractor and one Fischer was a sub-contractor for the construction of the ironwork. The building was nearing completion. The work under way at the time of the accident was the construction of a pent house, a projection above the main roof for the accommodation of the elevator machinery. This pent house was about twelve feet above the roof. Kennedy's employees, who were at work upon this part of the structure laying bricks, had constructed a runway by placing two planks with one end upon the main roof and the other upon wooden horses, with two other planks running from these horses to the roof of the pent house. At the same time and place defendant Fischer's men were placing some of the last of the ironwork. Plaintiff was in the employ of Fischer as an ironworker and was caused to fall and was injured by the alleged negligent manner in which said plank was laid. The evidence was undisputed that the runway was constructed and maintained by Kennedy or his employees, and that it was used in common by the employees of Kennedy and Fischer. The broad question upon the appeal was whether the defendant Fischer was to be charged with responsibility under the provisions of section 18 of the Labor Law (now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as amd. by Laws of 1911, chap. 693). Writing for the Appellate Division, Second Department, Mr. Justice WOODWARD said: 'We must examine the language, therefore, and determine whether a sub-contractor, doing no act in reference to the furnishing of materials or the construction of a scaffolding, but who merely sends his employees to a building to do certain work, and they make use of the structures erected by the general contractor for the use of his employees in work of a like general nature, is liable under this section of the Labor Law if such scaffolding falls and results in injury to his employees.'

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