Carroll v. City of New York
| Decision Date | 13 November 1962 |
| Citation | 37 Misc.2d 563,234 N.Y.S.2d 954 |
| Parties | Margaret J. CARROLL, as Administratrix of the Estate of Edward J. Carroll, Deceased, Lore W. Hellauer, as Administratrix of the Estate of Frederick J. Hellauer, Deceased, Alice Molloy, as Administratrix of the Estate of John F. Molloy, Deceased, Virginia Hanson, as Administratrix of the Estate of Arthur G. Hanson, Deceased, Mary A. Hoolan, as Administratrix of the Estate of William P. Hoolan, Deceased, and Albert Casario, Plaintiffs, v. The CITY OF NEW YORK, Edward F. Cavanagh, Jr., Fire Commissioner of the City of New York, and Abraham Schecter, Defendants. Rose Madeline INFOSINO, as Administratrix of the Goods, Chattels and Credits of Charles J. Infosino, Deceased, Plaintiff, v. The CITY OF NEW YORK, Treburn Realty Corporation, Abraham Schecter and Paul Hayman, Arthur Hayman, Seymour Lindenberg, and Elias Lindenberg, individually and as partners doing business as and trading under the firm name and style of Hayman & Lindenberg, Defendants. |
| Court | New York Supreme Court |
Martin M. Connors, New York City (Alfred S. Julien, New York City, of counsel), for plaintiffs Margaret J. Carroll, Lore W. Hellauer, Allce Molloy, Virginia Hanson, Mary A. Hoolan, and Albert Casario.
Dominic J. Cornella, New York City (Samuel F. Gold, New York City, of counsel), for plaintiff Infosino.
Leo A. Larkin, Corp. Counsel (Paul Selby, New York City, of counsel), for defendants City of New York and Edward F. Cavanagh, Jr ., Fire Commissioner.
Vincent F. O'Rourke, New York City, for defendants Schecter and Treburn.
The motions on the part of the defendants City of New York and Treburn Realty Corporation to set aside the verdict of the jury of 'liability' under section 205-a of the General Municipal Law and on the ground that it was contrary to the weight of the evidence and contrary to law under section 549 of the Civil Practice Act are hereby granted.
In reporting its verdict, the jury unanimously and to the exclusion of any other verdict, stated that the verdict of liability was under section 205-a of the General Municipal Law.
At the outset of this trial, a motion was made by the plaintiff Infosino to amend its complaint so as to incorporate the provisions of sections 205-a of the General Municipal Law to provide an additional cause of action of said plaintiff against the defendant Treburn Realty Corporation. In denying the application to amend, this court rendered the following decision:
As a result of this decision, the plaintiff Infosino was limited to only one cause of action, common law negligence, against the Treburn Realty Corporation. Under the circumstances, the verdict of the jury of 'liability' under section 205-a of the General Municipal Law is contrary to law and the verdict as against the Treburn Realty Corporation must be set aside.
The court specifically charged the jury with respect to section 205-a of the General Municipal Law, and the jury, in reporting its verdict unanimously found 'liability' against the Treburn Realty Corp. only on that basis.
It was the clear intent of the jury to find liability only on the basis of section 205-a. Both in their request for instructions before their verdict and in their actual verdict, they excluded any other theory of liability. The Court of Appeals has stated the law to be that it must be assumed that in reaching its verdict, the jury gave full heed to the instructions of the trial court (Antonsen v. Bay Ridge Savings Bank, 292 N.Y. 143, 146, 54 N.E.2d 338, 339).
The theories of common law negligence as well as section 205-a of the General Municipal Law were submitted to the jury for their consideration to differentiate and in rendering its verdict, the jury erred in delivering a verdict contrary to the law in this case.
It is well established that where a case is submitted on two theories of liability and a general verdict is returned, the verdict may not stand if one theory is legally untenable (Thomas v. Central Greyhound Lines, 6 A.D.2d 649, 653, 180 N.Y.S.2d 461, 465).
The verdict of the jury, as against the City of New York, must also be set aside. Section 205-a of the General Municipal Law is a special statute enacted for the benefit of injured or deceased firemen or their relatives. Section 205-a of the General Municipal Law provides:
'In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, wilful or culpable negligence of any person or persons in failing to comply with the requirement of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omissions, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department, injured, or whose life may be lost while in the discharge or performance of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department or to pay to the wife and children, or to pay to the parents, or to pay to the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than one thousand dollars, and in case of death not less than five thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid.'
Section 205-a of the General Municipal Law is a right of action which is conferred upon the family or relatives of the deceased firemen, and in the considered thinking of this court is directed at property owners, who have violated an ordinance or statute, not at the municipality. The section uses the word 'comply'. The latter is defined in Black's law dictionary, as applicable here, as 'to obey' or 'as to comply with conditions and regulations.' In such context, it is capable of only one construction: that the conditions and regulations are initiated by the State, or its counterpart, the City, and are obeyed and performed by some one other than the State or City. To be specific, the State enacted this law in 1935, amended it in 1936, made no provision as to whom it was directed, but some one other than the municipality must 'comply' with the law. In this case before the court, the State enacted the law and so, constructively, it was directed at property owners who have violated a statute or ordinance.
This enactment in 1935 was also an amendment of Chapter 761 of the Greater New York Charter. Chapter 761 reads as follows:
Chapter 761 of the charter was originally enacted as Chapter 410,...
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