John Wanamaker, New York, Inc. v. Otis Elevator Co., (Action No. 1.)

CourtNew York Court of Appeals
Writing for the CourtHOGAN
Citation126 N.E. 718,228 N.Y. 192
Decision Date24 February 1920
Docket Number(Action No. 1.)
PartiesJOHN WANAMAKER, NEW YORK, Inc., et al. v. OTIS ELEVATOR CO.

228 N.Y. 192
126 N.E. 718

JOHN WANAMAKER, NEW YORK, Inc., et al.
v.
OTIS ELEVATOR CO.

(Action No. 1.)

Court of Appeals of New York.

Feb. 24, 1920.


Action by John Wanamaker, New York, Incorporated, and another, against the Otis Elevator Company. From a judgment of the Appellate Division, affirming a judgment for plaintiffs (186 App. Div. 655,175 N. Y. Supp. 78), defendant appeals by permission of the Appellate Division (176 N. Y. Supp. 905).

Modified, and, as modified, affirmed.

See, also, 126 N. E. 721.

Crane, J., dissenting.

[126 N.E. 719]


[228 N.Y. 193]Appeal from Supreme Court, Appellate Division, Second department.

Charles A. Boston, of New York City, for appellant.

228 N.Y. 195]Frank Verner Johnson, of New York City, for respondents.
[228 N.Y. 196]HOGAN, J.

The plaintiff, John Wanamaker, New York, Incorporated, hereinafter referred to as the Wanamaker Company, has been for years engaged in conducting a department store in the city of New York. On April 27, 1909, one of the elevators in said store, manufactured and installed by the defendant in October, 1907, pursuant to a contract between defendant and the Wanamaker Company, fell, due to a break of two iron straps designed and used for the support of the hoisting cable of the elevator.

One Matilda Rumetsch, together with other patrons of the store, was in said elevator, and sustained injuries. She thereafter brought an action against the Wanamaker Company to recover damages for such injuries. Notice of the commencement of the action was given defendant, and it was requested to come in and defend the same. Defendant did not, however, participate in the defense of the action, which thereafter proceeded to trial and resulted in a verdict against the Wanamaker Company for $16,000. Judgment was entered upon the verdict for damages, $16,000, and costs, $223.87. On July 29, 1912, an appeal was taken from the judgment to the Appellate Division by the Wanamaker Company and on January 10, 1913, an order therein was entered, reversing the judgment of the Trial Term and granting a new trial; costs to abide the event. [228 N.Y. 197]Rumetsch v. Wanamaker, N. Y., Inc., 154 App. Div. 800, 139 N. Y. Supp. 385. The plaintiff thereupon perfected an appeal to this court, and, after argument of said appeal, the order of the Appellate Division and judgment thereon was reversed, and the judgment of the Trial Term affirmed, with costs in this court and the Appellate Division, which were taxed at $503.69, and judgment thereafter was entered December 23, 1915.

The plaintiff, General Accident Fire & Life Assurance Corporation, Limited, of Perth, Scotland, hereinafter designated as the Assurance Company, had issued a policy of liability insurance to the Wanamaker Company, whereby it agreed to indemnify the Wanamaker Company from any loss, by reason of the liability imposed upon it by law, for damages on account of bodily injuries accidentally sustained by passengers riding in the aforesaid elevator, the liability for such indemnity being limited to the amount of $5,000 for injuries sustained by one person, and to defend any suits which might be brought against the Wanamaker Company on account of such injuries, and to pay in addition to the aforesaid indemnity the costs taxed against the Wanamaker Company in any legal proceedings so defended, and all expenses incurred in the conduct of such defense. The policy also provided:

‘In case of payment of loss under this policy the corporation [Assurance Company] shall be subrogated to all claims or rights of the assured in respect of such loss against any person or persons and the assured shall execute any and and papers required and shall co-operate with the corporation to secure to it said rights.’

The Assurance Company, as required by the terms of the policy contract, which was in force at the time of the accident, defended the Wanamaker Company in the action against it, and prosecuted and defended the appeals therein. The original judgment having been reinstated by the decision of this court ([228 N.Y. 198]Rumetsch v. Wanamaker, N. Y. Inc., 216 N. Y. 379, 110 N. E. 760, L. R. A. 1916C, 1245), the Wanamaker Company and Assurance Company on December 29, 1915, were compelled to pay to Matilda Rumetsch, in satisfaction of the judgments and interest thereon, the sum of $20,523.02. Of said sum the Assurance Company paid $6,906.33 as indemnity for the loss imposed upon the Wanamaker Company by...

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42 practice notes
  • Hoskins v. Hotel Randolph Co., No. 36669.
    • United States
    • United States State Supreme Court of Iowa
    • December 16, 1926
    ...to the plaintiff or by way of indemnity to the defendant. Berg v. Otis Co., 64 Utah, 518, 231 P. 832;John Wanamaker v. Otis Elevator Co., 228 N. Y. 192, 126 N. E. 718;MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696;Johnson v. Cadillac ......
  • Hedgebeth v. Medford
    • United States
    • United States State Supreme Court (New Jersey)
    • September 21, 1977
    ...644 (1917); Illinois Ins. Exch. Ins. Co. v. Braun, 280 Pa. 550, 124 A. 691 (1921); John Wanamaker, New York, Inc. v. Otis Elevator Co., 228 N.Y. 192, 126 N.E. 718 (1920), it is now clearly accepted. See, e.g., Commercial Stand. Ins. Co. of Ft. Worth v. Combs, 249 Ark. 533, 460 S.W.2d 770 (1......
  • Hoskins v. Hotel Randolph Co., 36669
    • United States
    • United States State Supreme Court of Iowa
    • December 16, 1926
    ...to the plaintiff, or by way of indemnity to the defendant. Berg v. Otis Elev. Co., 64 Utah 518 (231 P. 832); Wanamaker v. Otis Elev. Co., 228 N.Y. 192 (126 N.E. 718); MacPherson v. Buick Motor Co., 217 N.Y. 382 (111 N.E. 1050); Johnson v. Cadillac Motor Car Co., 261 F. 878; Dayton Power & L......
  • Crowley's Milk Co. v. American Mutual Liability Ins. Co., No. 66 C 455.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 1969
    ...costs of defending. See 7-A Appleman, Insurance Law and Practice (1962) 511. John Wanamaker, New York, Inc. v. Otis Elevator Co., 1920, 228 N.Y. 192, 126 N.E. 718, mainly relied on by defendant, may well be thought to hold no more than that an insurer who sues in his insured's right on a cl......
  • Request a trial to view additional results
42 cases
  • Hoskins v. Hotel Randolph Co., No. 36669.
    • United States
    • United States State Supreme Court of Iowa
    • December 16, 1926
    ...to the plaintiff or by way of indemnity to the defendant. Berg v. Otis Co., 64 Utah, 518, 231 P. 832;John Wanamaker v. Otis Elevator Co., 228 N. Y. 192, 126 N. E. 718;MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696;Johnson v. Cadillac ......
  • Hedgebeth v. Medford
    • United States
    • United States State Supreme Court (New Jersey)
    • September 21, 1977
    ...644 (1917); Illinois Ins. Exch. Ins. Co. v. Braun, 280 Pa. 550, 124 A. 691 (1921); John Wanamaker, New York, Inc. v. Otis Elevator Co., 228 N.Y. 192, 126 N.E. 718 (1920), it is now clearly accepted. See, e.g., Commercial Stand. Ins. Co. of Ft. Worth v. Combs, 249 Ark. 533, 460 S.W.2d 770 (1......
  • Hoskins v. Hotel Randolph Co., 36669
    • United States
    • United States State Supreme Court of Iowa
    • December 16, 1926
    ...to the plaintiff, or by way of indemnity to the defendant. Berg v. Otis Elev. Co., 64 Utah 518 (231 P. 832); Wanamaker v. Otis Elev. Co., 228 N.Y. 192 (126 N.E. 718); MacPherson v. Buick Motor Co., 217 N.Y. 382 (111 N.E. 1050); Johnson v. Cadillac Motor Car Co., 261 F. 878; Dayton Power &am......
  • Crowley's Milk Co. v. American Mutual Liability Ins. Co., No. 66 C 455.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 14, 1969
    ...costs of defending. See 7-A Appleman, Insurance Law and Practice (1962) 511. John Wanamaker, New York, Inc. v. Otis Elevator Co., 1920, 228 N.Y. 192, 126 N.E. 718, mainly relied on by defendant, may well be thought to hold no more than that an insurer who sues in his insured's right on a cl......
  • Request a trial to view additional results

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