Kuhn v. P.J. Carlin Const. Co.

• Citation: 8 N.E.2d 300,274 N.Y. 118
• Parties: KUHN v. P. J. CARLIN CONST. CO. et al.
• Decision Date: 27 April 1937
• Court: New York Court of Appeals Court of Appeals

274 N.Y. 118

8 N.E.2d 300

KUHN

v.P. J. CARLIN CONST. CO. et al.

Court of Appeals of New York.

April 27, 1937.

Action by Elizabeth Kuhn as administratrix of the estate of Francis Kuhn, deceased, against the P. J. Carlin Construction Company and the Albee Godfrey Whale Creek Company, Incorporated, impleaded with the City of New York and others. From a judgment of the Appellate Division, First Department (248 App.Div. 582, 288 N.Y.S. 1110), affirming a judgment of the Trial Term in favor of the plaintiff as against the P. J. Carlin Construction Company and in favor of the Albee Godfrey Whale Creek Company, Incorporated, against the plaintiff, the plaintiff and the P. J. Carlin Construction Company cross-appeal.

Judgment against the P. J. Carlin Construction Company reversed, and new trial granted, and otherwise judgment affirmed. Appeals from Supreme Court, Appellate Division, First department.

Thomas J. Milan, Robert X. Kuzmier, Richard C. Cotter, and Jacob Gruber, all of New York City, for plaintiff, appellant and respondent.

E. C. Sherwood, Henry Bogert Clark, and Frederic J. Locker, all of New York City, for defendant appellant.

William A. Seidl, Patrick S. Mason, and Paul Koch, all of New York City, for defendant respondent.

RIPPEY, Judge.

The city of New York owns Rikers Island, on which it has maintained a penal institution for many years. Having decided to erect new buildings on the island, the city entered into five main contracts with as many different contractors for their construction and equipment to be carried through under the supervision of the city architects. The contract for the general construction work (not including work under contracts for power plants, plumbing, heating, ventilation and refrigerator work and electrical work) was let to the defendant the P. J. Carlin Construction Company (hereinafter referred to as Carlin), who agreed to furnish all necessary work and materials to complete its part of the job within 800 days after the work was commenced. Carlin contracted with the defendant Albee Godfrey Whale Creek Construction Company (hereinafter referred to as Albee) to do the iron work which fell within the provisions of the contract between Carlin and the city. Francis Kuhn, for whose death this action was brought to recover damages, was an employee of Albee.

Rikers Island was inaccessible except by boat. The city transported prisoners to and from the island by means of a municipally owned ferry, but by the express terms of its contracts with Carlin and with the other main contractors assumed no responsibility for transporting men or materials required in connection with the construction and equipment of the buildings. Each contractor was required to ‘investigate the existing means of transportation to and from Rikers Island’ and to ‘assume responsibility for the transportation from mainland to island of men and materials for all work done under this contract.’ For a time after work commenced, all men employed on the job under the Carlin contract were transported by the municipal ferry. Finally the city notified Carlin that it would no longer furnish ferry service. Thereupon Carlin made the arrangement with one Forsyth, who owned and operated a ferry boat, the steamer Observation, to furnish such service, as embodied in a letter dated June 26, 1931, which, so far as material, reads as follows:

‘(1) You are to operate the Steamer ‘Observation,’ which is warranted by you to be officially rated at 250 capacity by local steamboat inspectors, Custom House, N. Y., full crewed, upon a schedule furnished to you by our Field Office, and calling for operation five days in the week only, from Monday to Friday inclusive.

‘(2) You are to be compensated therefor by collecting fares from the men at the rate of 10¢ a round trip. In the event that your fares do not reach the sum of $60.00 upon any given day, we shall reimburse you for the difference. Where your fares exceed $60.00 a day, you will pay the excess to us up to a point where we are reimbursed for any monies paid to you by us under this license.

‘(3) It is understood that we are in no way obligated to continue your services, which may be suspended or completely shut down at any time at our pleasure. It is understood that you will procure all landing permits except at the Rikers Island landing. This boat will be held for this service for twelve hours a day, and in the event that it becomes disabled, another boat will be immediately substituted of equal capacity, namely, 250, under the Steamboat Inspector's rating.

‘(4) We understand that your boat is warranted to be in first class condition, with all necessary permits to operate in this service.’

After four or five months it was found that too large a number of men were employed on the island requiring transportation to work to be accommodated on the steamship Observation, and arrangements were made by J. Francis Carlin with Forsyth to use other boats in place of the Observation. He put into service the Sea Bird and the Albertina at different times and guaranteed Forsyth a minimum of $100 a day while those boats were used. The substance of the agreements with Forsyth was that he should furnish ferry service when and as needed for the men and should receive either by collection from the men through fares or if such collections were insufficient, from Carlin, a minimum of $60 per day for the use of the Observation or a minimum of $100 per day for the use of other ferry. Employees of the other four main contractors also used this same ferry service. On March 22, 1932, Carlin notified all the other main contractors that, because of the fewer numberof men which they should be required to employ on the work thereafter, they would not require as large a boat as the one in use and that, in order to utilize the smaller boat which they proposed to put on about March 22, they would be obliged to restrict the passengers to the men working under their own contract, namely No. 1, and it would be necessary for the other contractors on and after that date to provide transportation for their own men.

Employees of both Carlin and Albee were instructed to use the Forsyth service for transportation between the mainland and the island and were forbidden to use any other means of transportation and were given passes by Carlin to identify them and admit them to passage on the boat and to a landing on the island. Each pass issued by the construction company to the men was numbered and dated, with the name, address and signature of the bearer, and countersigned by the company, and it is obvious that it was issued for the purpose of protecting the city of New York and the Carlin Company. A charge of 50 cents was made to cover the cost of the celluloid case in which the pass was carried, of which 25 cents was to be refunded when the pass and case were returned. Among other things, there is printed on the pass: ‘You are cautioned against speaking or communicating in any way with the prisoners. All parcels, luggage and tool boxes subject to examination. * * * This pass is issued for the exclusive use of the person designated on the obverse side and under the following conditions: It is not transferable. The holder hereof shall not use it for any purpose other than in the lawful performance of his duties with relation to Contract No. 1, Rikers Island Penitentiary and the P. J. Carlin Construction Co. Any marks or erasures made thereon shall immediately cancel this pass and expose the holder to a searching investigation by the officers charged with suarding the Wards and Property of the City of New York. This pass must be immediately returned to the P. J. Carlin Construction Co., when the holder severs his connections Contract No. 1 at Rikers Island, there is no extension or hold-over privilege given or implied for any reason. * * * All passes not immediately returned shall be cancelled. A printed cancellation list shall be issued to the officers and any person unlawfully presenting a cancelled pass shall be liable to arrest and detention until he shall have fully justified himself to the authorities. No pass shall be reissued, bearing a serial number previously issued.’ A notice was posted on the boat. Its purpose was clearly to notify those using the boat to maintain order and avoid confusion and to save themselves from danger and prosecution for misbehavior on the boat.

On September 9, 1932, Francis Kuhn, with other employees of the Carlin and Albee companies, boarded the steamer Observation at her dock at East One Hundred and Thirty-Sixth street, New York. The steamer backed out of her berth into the East River. While she was turning to head for Rikers Island, a violent explosion occurred, the ship was destroyed, and Kuhn was killed. His administratrix sued both Carlin and Albee for damages arising out of the death of her husband, by virtue of the opportunity offered under the provisions of section 130 of the Decedent Estate Law (Consol.Laws, c. 13) of the state of New York. The trial court dismissed the complaint as against Albee. The case, as to Carlin, went to the jury and a verdict for plaintiff resulted. Judgment upon the nonsuit and verdict has been affirmed by the Appellate Division, First Department, and appeals by plaintiff and by Carlin, by permission, have been perfected to this court.

We have recently had occasion to consider the status of an employee of defendant Carlin who was injured in the explosion of the Observation and have held that the employee could claim and sustain an award against his employer under the Workmen's Compensation Law (Consol. Laws, c. 67) of the state of New York. Heaney v. P. J. Carlin Construction Co., 269 N.Y. 93, 199 N.E. 16, affirmed, 299 U.S. 41, 57 S.Ct. 75, 81 L.Ed. 27. In Dingfeldt v. Albee Godfrey Whale Creek Co., 272 N.Y. 623, 5 N.E.(2d) 362, we have made a similar decision against the Albee Godfrey Company where the claimant was its employee....