Hooey v. Airport Const. Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: CARDOZO
• Citation: Hooey v. Airport Const. Co., 253 N.Y. 486 (N.Y. 1930)
• Decision Date: 06 May 1930
• Parties: HENRY W. HOOEY, Appellant, v. AIRPORT CONSTRUCTION COMPANY et al., Respondents.

253 N.Y. 486

171 N.E. 752

HOOEY

v.AIRPORT CONST. CO. et al.

Court of Appeals of New York.

May 6, 1930.

Action by Henry W. Hooey against the Airport Construction Company and Tobin and McKenna, Incorporated. From a judgment of the Appellate Division (228 App. Div. 83, 239 N. Y. S. 629) affirming by divided court a judgment of the Trial Term dismissing the complaint, plaintiff appeals.

Affirmed as to defendant last named, with costs; and reversed and a new trial granted as to defendant first named, with costs to abide the event.Appeal from Supreme Court, Appellate Division, Third Department.

James A. Leary, of Saratoga Springs, and A. W. Pitkin, of Schenectady, for appellant.

Thomas J. P. Cawley and John W. MacDonald, both of Albany, for respondent Tobin & McKenna, Inc.

Jacob I. Goodstein, of New York City, for respondent Airport Const. Co.

CARDOZO, C. J.

In June, 1928, an airport was in course of construction for the city of Albany. The defendant Airport Construction Company was the general contractor for the construction of the hangars. Its superintendent was on the scene during the progress of the work. To a subcontractor, the defendant Tobin & McKenna, Inc., was assigned the building of the walls. Other subcontractors, roofers, carpenters, manufacturers of sash, had their own allotted tasks.

On June 7, the south wall of hangar No. 2 had been carried by the subcontractor to the level of the window sills. On June 8, by 11 a. m., the brick piers had been built between the windows, and between the windows and the door. The masons then gave was until the sash was set in place. They left their tools, bricks, and mortar on the spot, for they would have to return at a later state and construct the brick sills.

The plaintiff, who was employed by the subcontractor for the sash, began his work at the wall the morning of the next day. The wall was eight inches thick, about fifty feet long, and nine feet high. It had neither roof nor rafer nor partition to bind it to the hangar of which it was to form a part. Freshly built, it had been left standing in the open country, swept by heavy winds, without braces or supports. Hardly had the plaintiff began the placing of the sash before the piers toppled over and buried him below. He suffered injuries for which he sued. The trial judge dismissed the complaint. The Appellate Division affirmed by a divided court.

The falling wall is evidence that there was negligence on the part of some one. There is a custom by which walls of such dimensions, if exposed to winds or other strains, are sustained while still ‘green’ by the support of wooden braces. Either that device or something else was manifestly necessary. The only question is on whom the duty to supply it lay.

We think the general contractor was subject to the duty, whatever may be found to be the liability of others. The undertaking to build the hangars carried with it an attendant obligation to build them well and safely within the limits of the care and skill that are proper to the calling. American Law Institute, Restatement of the Law of Torts, § 254. If the contractor would shift the incidence of the duty, and the liability for nonperformance, to the shoulders of another, the least it should do is to prove the terms of the new contract, the extent of delegation. Till then, it is still the entrepreneur, the master of the enterprise. The record does not tell us anything about the terms of the subcontract beyond the fact that the subcontractor had undertaken to build the walls. There is no evidence that it undertook as part of its specifications to provide the necessary guards and braces during the progress of the work, a service which would have involved, for so the record shows, the employment of a carpenter. There is no evidence that such a service is an implied or customary incident of...