George A. Fuller Co. v. Fischbach & Moore, Inc.

• Decision Date: 16 December 1958
• Citation: George A. Fuller Co. v. Fischbach & Moore, Inc., 180 N.Y.S.2d 589, 7 A.D.2d 33 (N.Y. App. Div. 1958)
• Parties: GEORGE A. FULLER COMPANY, Plaintiff, v. FISCHBACH & MOORE, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 589

180 N.Y.S.2d 589

7 A.D.2d 33

GEORGE A. FULLER COMPANY, Plaintiff, v.FISCHBACH & MOORE, Inc., Defendant.

Supreme Court, Appellate Division, First Department.

Dec. 16, 1958.

Reargument and Appeal Denied Jan. 29, 1959.

See 182 N.Y.S.2d 331.

Patrick J. Hughes, New York City, of counsel(James B. Donovan and DeRoy C. Thomas, New York City, with him on the brief; William S. O'Connor, New York City, attorney), for plaintiff.

William F. McNulty, New York City, of counsel(John J. Kennelly, New York City, with him on the brief; Thomas P. Curtin, New York City, attorney), for defendant.

Before BREITEL, J. P., and FRANK, VALENTE, McNALLY and STEVENS, JJ.

STEVENS, Justice.

This is a submission of a controversy upon a statement of agreed facts pursuant to §§ 546 to 548, inclusive, of the Civil Practice Act.

The plaintiff herein as general contractor, and Columbia Pictures as owner, entered into an agreement whereby plaintiff undertook to perform certain work at premises 711 Fifth Avenue, New York City.Thereafter plaintiff entered into contracts with various subcontractors for performance of the work called for by the contract.

On February 23, 1956plaintiff and defendant entered into a written contract whereby defendant, as subcontractor, agreed to perform all of the electrical work connected with the alterations and improvements.

The contract contained the following provision:

'The Sub-Contractor agrees to indemnify and save harmless the Owner and General Contractor against loss or expense by reason of the liability imposed by law upon the Owner or General Contractor for damage because of Bodily Injuries including death at any time resulting therefrom accidentally sustained by any person or persons or on account of damage to property arising out of or in consequence of the performance of this work whether such injuries to persons or damage to property are due or claimed to be due to any negligence of the Sub-Contractor, the Owner, the General Contractor, his or their employees or agents or any other person.'

On April 23, 1956 an employee of defendant was injured at the premises while working within the scope of his employment, and while actively engaged in the work contracted for between the plaintiff and defendant.The accident was due entirely to 'the active negligence of plaintiff, its agents, servants or employees', without any fault on the part of the defendant.Neither the workman nor any employee of the defendant was working at that time on the portion of the ceiling which fell and caused the injury.

A suit subsequently brought by the injured workman was settled for $55,000, which the parties agree was a fair and reasonable amount.This sum was paid by the plaintiff, who now seeks recovery from the defendant.

The question for our determination is whether the plaintiff is entitled to reimbursement in the amount paid by reason of the abovequoted provision of the contract.Or, to express it differently, is this a provision for absolute indemnity?

The plaintiff contends the defendant is liable by reason of the language of the agreement; that as between them it is a provision for absolute indemnity.

The defendant asserts that since this is a construction contract the indemnity clause is merely an incident thereto 'intended to afford * * * protection [to the general contractor] against such claims * * * as might grow out of damages to persons resulting from the prosecution of the work embraced in the general contract to be undertaken [by defendant] as subcontractor.'In support of its position it directs attention to the language 'arising out of or in consequence of the performance of this work' construing that as a limitation on the area of possible liability, contending it must refer to the doing of the electrical work.

Analysis of the language of the provision compels a rejection of this view.In our opinion the express intent was to save harmless the owner and general contractor against specific hazards, that is, 'loss or expense by reason of the liability imposed by law * * * for damages for bodily injuries' accidentally sustained.The words 'arising out of or in consequence of the performance of this work' cannot be given the limited construction sought because of the language which follows, to wit, 'whether such injuries to persons * * * are due or claimed to be due to any negligence of the Sub-Contractor, the Owner, the General Contractor, his or their employees or agents or any...