French v. Vix

• Decision Date: 22 June 1894
• Citation: 143 N.Y. 90,37 N.E. 612
• Parties: FRENCH v. VIX et al.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 90

37 N.E. 612

FRENCH

v.VIX et al.

Court of Appeals of New York.

June 22, 1894.

Appeal from common pleas of New York city and county, general term.

Action by Georgie French against Jacob Vix and others for injuries to plaintiff's premises caused by blasting. Verdict for plaintiff. Defendants' exceptions, heard at general term, were sustained. 21 N. Y. Supp. 1016. Plaintiff appeals. Affirmed.

William H. Arnoux, for appellant.

Robert E. Deyo, for respondents.

EARL, J.

This action was brought to recover damages to the plaintiff's house in the city of New York under the following circumstances: One Henry owned a rocky lot adjoining the plaintiff's house, and in May, 1891, he entered into a written contract with the respondents, whereby they agreed to build a house for him upon his lot, which contract contained the following clause: ‘And the parties of the second part further agree to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passerby during the performance of said work.’ Subsequently the respondents entered into contract with one Dolan to do the rock and earth excavation requisite for the building of Henry's house, which contract contained the following clause: ‘The said Dolan hereby assumes all responsibility for any loss or damage which may occur to persons or property while he or his employes are engaged in the performance of such work, and hereby agrees to save the said Jacob Vix and sons harmless from the payment of any such loss during the progress of the work.’ Dolan entered upon the performance of his contract, and, in blasting the rock upon Henry's lot, caused the damage to the plaintiff's house which is complained of in this action. There was evidence tending to show that the damage to the plaintiff's house was caused by the negligent manner in which Dolan conducted the blasting of the rock; and there was also evidence from which the jury might have found that some damage might have been done to the plaintiff's house if the blasting had been done with the utmost care. The trial judge, in submitting the case to the jury, charged that the plaintiff was in any event entitled to a verdict, and that the only question for their consideration was the amount of damages. He reached this conclusion by holding that the respondents had, by the clause in their contract above quoted, indemnified Henry against these damages, and that, as Henry was liable to the plaintiff, to prevent circuity of actions she could commence her action directly against them as indemnitors. The jury having rendered a verdict for the plaintiff, the judge directed the respondents' exceptions to be heard in the first instance at the general term. There the exceptions were sustained, and a new trial was granted on the ground, in substance, that it did not conclusively appear that the work which Henry contracted to have done would necessarily cause damage to the...