Mollino v. Ogden & Clarkson Corp.

• Decision Date: 16 November 1926
• Citation: 243 N.Y. 450,154 N.E. 307
• Parties: MOLLINO v. OGDEN & CLARKSON CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 450

154 N.E. 307

MOLLINO

v.OGDEN & CLARKSON CORPORATION et al.

Court of Appeals of New York.

Nov. 16, 1926.

Action for personal injuries brought by Antonio Mollino against the Ogden & Clarkson Corporation, Thomas L. Feitner, and others. Judgment against named defendants was affirmed by the Appellate Division (216 App. Div. 738, 214 N. Y. S. 885). Motion of defendant Feitner for leave to appeal was granted (216 App. Div. 807, 215 N. Y. S. 887), and the named defendants appeal.

Judgment affirmed as to defendant Ogden & Clarkson Corporation, and as to defendant Feitner reversed, and a new trial ordered.

Appeal from Supreme Court, Appellate Division, First Department.

Alfred G. Reeves, John S. Wise, Jr., and Harry J. Ahiheim, all of New York City, for appellant Ogden & Clarkson Corporation.

William Dike Reed and K. Courtenay Johnston, both of New York City, for appellant Feitner.

Alexander C. MacNulty, of New York City, for Real Estate Board, intervener, as amicus curiae.

Harold R. Medina, Moses Feltenstein and Harry Miller, all of New York City, for respondent.

McLAUGHLIN, J.

The plaintiff, on the 28th of March, 1923, at about 2:30 p. m., while walking on East One Hundred and Twenty-Seventh street, New York City, was seriously injured by a portion of a chimney falling from the roof of a building located at 49 East One Hundred and Twenty-Seventh street. He brought this action to recover for the injuries.

The action was originally brought against the two appellants and Mary A. Stickney, Minnie H. Musgrave, and Alice F. Brown. The two persons last named each held a mortgage upon the premises in question. The defendant Mary A. Stickney was concededly the owner in fee of the premises upon which the building stood, until February 14, 1916, at which time she conveyed the same to the appellant Feitner. On the same day the deed of conveyance was given, Mrs. Stickney and her husband as party of the first part, Ogden & Clarkson Corporation as party of the second part, and Feitner as party of the third part entered into an agreement. Said agreement, after reciting that it was--

‘The desire and request of the first party that said property shall be under the absolute and sole control as to sale, lease, and management of the second party for the purpose of getting the same liguidated to the best advantage of the first party and of all interested therein, and to that end the second party is willing to make advances to be secured thereby, and the title thereof is to be held by the third party accordingly,’ provided:

‘(1) The second party shall have the sole and absolute control of said property as to its sale, lease, and management, including its improvement and repair.

‘(2) All advances made from time to time by the second party or at its request, in the management of said property, shall be deemed to be at the request and for the benefit of the first party and secured by said property.

‘(3) And it is, of course, understood that the third party is under no liability or responsibility for any act or omission hereunder.’

After the conveyance to Feitner and the execution of the agreement signed by him, Ogden & Clarkson Corporation and Mrs. Stickney (just quoted), she, so far as appears, had only a remote beneficial interest in the property, and the two mortgagees had an interest only to the extent of their respective mortgages. They were not mortgagees in possession, nor did they have any control or management of the property. These facts appearing, at the opening of the trial and before any evidence had been taken plaintiff's counsel consented to a dismissal of the complaint as to the two mortgagees, and the action as to them was then discontinued. It was, however, continued against Feitner, Ogden & Clarkson Corporation, and Mrs. Stickney, but at the close of plaintiff's case the court dismissed the complaint as to Mrs. Stickney and denied a motion to dismiss as to Ogden & Clarkson Corporation and Feitner, to which an exception was taken by each of such defendants. A similar motion was made by the respective attorneys of Feitner and Ogden & Clarkson Corporation at the close of the evidence, which motion was also denied and an exception taken by each.

The case was then sent to the jury, and it rendered a verdict in favor of the plaintiff for $18,500. Judgment to this effect was entered, and an appeal to the Appellate Division resulted in the judgment being unanimously affirmed as to Feitner and affirmed (one of the justices dissenting) as to Ogden & Clarkson Corporation. Both of such defendants then appealed to this court.

[1] I am of the opinion that the judgment as to Ogden & Clarkson Corporation should be affirmed. Under the agreement in and by which it had the ‘sole and absolute control of said property as to its sale, lease, and management, including its improvement and repair,’ it was obligated to see that the building was kept in such repair that persons lawfully using the street upon which the building abutted would not be injured by the building, or any part of it, falling upon them. The corporation, when it took possession of the property, agreed to look after it, including its improvement and repair, and it was obligated to do this by affirmative action on its part.

There was an abundance of evidence to sustain the finding of the jury that the plaintiff was struck by a portion of the chimney on such building falling to the street. The evidence also justified a finding that, at and for some time prior to the time of the accident, the chimney, a portion of which fell to the street, was in a dangerous condition and should have been made safe by the corporation. Its failure to do so was something more than nonfeasance; it was misfeasance on its part in not making the necessary repairs. Ogden & Clarkson Corporation was more than an ordinary broker to sell or lease real estate. This, it is true, was a part of its duty, but, under the agreement, it was obligated to perform the additional duty of keeping the property in repair. The corporation had possession of the building and had stipulated, under the agreement, to make the...