Comm'rs of State Ins. Fund v. City Chem. Corp.

• Decision Date: 04 March 1943
• Citation: 290 N.Y. 64,48 N.E.2d 262
• Parties: COMMISSIONERS OF STATE INS. FUND v. CITY CHEMICAL CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

290 N.Y. 64

48 N.E.2d 262

COMMISSIONERS OF STATE INS. FUND

v.CITY CHEMICAL CORPORATION et al.

Court of Appeals of New York.

March 4, 1943.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Commissioners of the State Insurance Fund against City Chemical Corporation to recover the amount of a workmen's compensation claim paid by plaintiff on ground that defendant negligently delivered to claimant's employer some inherently dangerous explosive substance in bottles labeled Pyruvic Acid. Defendant impleaded Akatos, Inc., and filed a cross-complaint against it. From a judgment of the Appellate Division, 38 N.Y.S.2d 355, 265 App.Div. 847, insofar as such judgment affirmed, by divided court, a judgment of the Supreme Court at trial term, O'Brien, J. presiding, entered upon a dismissal of the complaint, plaintiff appeals, and from so much of the judgment of the Appellate Division as affirmed a judgment in favor of impleaded defendant and against defendant City Chemical Corporation entered upon dismissal of cross complaint against impleaded defendant, defendant City Chemical Corporation appeals.

Judgments reversed and a new trial granted as to both defendants. Harry Schechter, William F. O'Rourke, and William H. Stieglitz, all of New York City, for plaintiffs, appellants.

Lyman A. Spalding and Robert E. Curran, both of New York City for City Chemical Corporation, appellant and respondent.

Godfrey von Hofe, of New York City, for Akatos, Inc., respondent.

DESMOND, Judge.

Plaintiffs-appellants, as insurers, paid the workmen's compensation claim of one Procopiadi and so became subrogated to Procopiadi's rights against any third person whose wrongdoing had caused Procopiadi's injuries. As such subrogee, appellants sued respondent City Chemical Corporation. The complaint sounds in negligence. It alleges that Chas. Pfizer & Co., Inc., employer of Procopiadi, bought from respondent City Chemical Corporation two bottles labeled ‘Pyruvic Acid C. P. (chemically pure)’ which the Pfizer Corporation, to respondent's knowledge, intended to use as a reactant, that the substance in the bottles was not pyruvic acid but some inherently dangerous explosive substance, that Procopiadi, as Pfizer's employee, attempted to open one of the bottles, which thereupon exploded, injuring Procopiadi. The answer of respondent City Chemical Corporation admits that it delivered to Procopiadi's employer two bottles labeled ‘Pyruvic Acid C. P.’ but denies knowledge of the use to which the substance was to be put by Pfizer or its employees and denies that it (City Chemical Corporation) delivered in those bottles any inherently dangerous or explosive substance. City Chemical Corporation sets up also in its answer a cross-claim against a third corporation, Akatos, Inc., which is a respondent on this appeal. In this cross-claim City Chemical Corporation says that it procured from Akatos, Inc., the same two bottles which in turn went to City Chemical Corporation, in the same condition and with the same contents, and that if the bottles did not contain pyruvic acid, and if they were mislabeled and contained any harmful thing, then fault, says City Chemical Corporation, was the fault of Akatos, Inc. This cross-claim seems to go on two theories, that is, breach of warranty by Akatos, and negligence of the latter. Akatos, in its turn, pleads that it is a vendor and distributor, not a manufacturer, of chemicals, and that the pyruvic acid which it sold to City Chemical Corporation, came to Akatos, in the same unopened bottles, from a manufactuer in Germany. At the close of the evidence offered by appellants and by respondent City Chemical Corporation (Akatox, Inc., put in no proof) the complaint and the cross-complaint were both dismissed. The dismissal was affirmed by the Appellate Division. We proceed to an examination of the facts to determine whether there is any evidence of City Chemical Corporation's negligence.

Procopiadi was a laboratory assistant employed by the Pfizer Company, manufacturing chemists. A chemist named Kane, Procopiadi's superior, directed that there be performed in the laboratory at the Pfizer plant, an experiment requiring the use of pyruvic acid. Pfizer's purchasing department ordered the pyruvic acid from City Chemical Corporation, a manufacturing chemist and the latter delivered two small bottles to Pfizer's messenger at the City Chemical plant. There is in the record an affidavit by an officer of City Chemical Corporation, offered in evidence by plaintiff against City Chemical Corporation, without objection. In that affidavit it is averred that the affiant, when the order for the pyruvic acid came to him, told Pfizer's purchasing agent by telephone that City Chemical Corporation ‘would get the same if he could send someone up here for it.’ It is argued here that that statement proves notice to Pfizer that City Chemical Corporation had not itself prepared the acid but was obtaining it elsewhere. We think at best it is some evidence of such notice; the same affidavit contains the information...