Dunn v. Uvalde Asphalt Paving Co.

• Decision Date: 22 May 1903
• Citation: 175 N.Y. 214,67 N.E. 439
• Parties: DUNN v. UVALDE ASPHALT PAVING CO.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 214

67 N.E. 439

DUNN

v.UVALDE ASPHALT PAVING CO.

Court of Appeals of New York.

May 22, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Thomas J. Dunn against the Uvalde Asphalt Paving Company. From a judgment of the Appellate Division (77 N. Y. Supp. 1125) affirming a judgment for plaintiff, defendant appeals. Modified.

R. Floyd Clarke, for appellant.

Jacob Marks, for respondent.

WERNER, J.

The defendant, the Uvalde Asphalt Paving Company, entered into a contract with the city of New York on July 10, 1900, for the paving of the roadway of Eighth street, in that city, from Broadway to McDougal street. The plaintiff was a subcontractor employed by the defendant to do the work of setting new curb and repairing the old curbstones under that contract. This action was brought to recover the balance of $2,615.27 due the plaintiff for the work done and materials furnished under his subcontract. There is no dispute as to the amount due, and the only questions presented arise upon the defendant's counterclaim.

The defendant, in its counterclaim, alleged that the plaintiff had performed the work under his subcontract in such a negligent and unskillful manner as to cause damage to adjoining property owners; that two cellars and their contents on East Eighth street were damaged by being flooded with water collected in a trench dug by the plaintiff, and that the flagging in the sidewalk in front of certain premises on West Eighth street was broken and destroyed; that by reason of this negligent work the persons affected thereby had brought suit against the defendant to recover damages therefor, amounting to $1,000 in one case, $673.97 in another, and $26.21 in the third, which sums the defendant is legally bound to pay. The plaintiff's reply is, in effect, a general denial of the defendant's counterclaim. Upon the trial, after the plaintiff had rested, the defendant sought to introduce evidence tending to prove the damages which had been occasioned by the alleged negligence of the plaintiff to the persons who had brought suit against the defendant. The plaintiff's counsel objected to this evidence as incompetent, immaterial, and irrelevant, also upon the ground that it is not claimed that the defendant had been called upon to pay any damages by reason of the plaintiff's bad workmanship. The trial court sustained the objection, and the defendant excepted. The defendant did not claim that it had paid any of the sums for which suits had been brought against it, except the sum of $26.21 claimed in one of the actions brought; and as to the payment of that item, which, with costs, amounted to $28.20, there was no dispute upon the trial.

The contract between the plaintiff and the defendant was informal, and contained no express stipulation that the defendant should be indemnified against liability or loss which might arise from the negligent performance by the plaintiff of the work which he had engaged to do. The plaintiff's alleged liability must therefore be predicated upon the rule of law under which a person guilty of negligence is charged with the responsibility for his wrongful act, not only directly to the person injured, but indirectly to a person who is legally liable therefor. In the latter case the wrongdoer stands in the relation of indemnitor to the person who has been held legally liable, and the right to indemnity rests upon the principle that every one is responsible for the consequences of his own wrong, and, if another person has been compelled to pay the damages which the wrongdoer should have paid, the latter becomes liable to the former. Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550;Oceanic S. N. Co. v. Compania T. E., 134 N. Y. 461, 31 N. E. 987,30 Am. St. Rep. 685. The learned counsel for plaintiff and defendant, respectively, are in substantial accord upon the general features of the rule above stated, but they do not agree as to its application to the case at bar. Counsel for the defendant insists that the contract of indemnity raised by inference of law includes indemnity against liability as well as against...