O'NEILL v. Gray

• Decision Date: 18 February 1929
• Docket Number: No. 159.,159.
• Citation: 30 F.2d 776
• Parties: O'NEILL v. GRAY.
• Court: U.S. Court of Appeals — Second Circuit

30 F.2d 776 (1929)

O'NEILL v. GRAY.

No. 159.

Circuit Court of Appeals, Second Circuit.

February 18, 1929.

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Thomas J. O'Neill, of White Plains, N. Y. (Charles D. Lewis, of White Plains, N. Y., and Leonard F. Fish, of New York City, of counsel), for plaintiff in error.

Strongman & Ward, of New York City (Karl W. Kirchwey, of New York City, of counsel), for defendant in error.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

The first objection raised by the defendant is the statute of limitations. An action for malpractice must be commenced within two years after the cause of action has accrued. New York Civil Practice Act, § 50. This term has been regarded by the courts as embracing unskillful or illegal practice by doctors or dentists, which results in physical injuries to the person. It is coupled in the statute with other purely personal wrongs — "libel, slander, assault, battery, seduction, criminal conversation, false imprisonment, and malicious prosecution." The injured person knows his injury, and may be properly required to decide promptly whether it is serious enough to justify suit. This is the construction which has been adopted by the state courts. Hurlburt v. Gillett, 96 Misc. Rep. 585, 161 N. Y. S. 994, affirmed 176 App. Div. 893, 162 N. Y. S. 1124; Camp v. Reeves, 209 App. Div. 488, 205 N. Y. S. 259, affirmed 240 N. Y. 672, 148 N. E. 753; American Exchange Pacific Bank v. Touche, 131 Misc. Rep. 236, 227 N. Y. S. 218. Under these cases, this statute only applies to wrongs to the person, and does not affect attorneys at law who have negligently conducted a litigation. Furthermore, if "malpractice" were construed to include injuries to property caused by unskillful professional management, many claims, as in this case, would be barred before they were discovered.

It is also clear that the cause of action here is not "to recover damages for a personal injury resulting from negligence" embraced in the three-year statute of limitations provided in section 49 of the New York Civil Practice Act. Section 37-a of the General Construction Law of the state of New York (Consol. Laws, c. 22) defines "personal injury" as including: "Libel, slander, criminal conversation, seduction and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another." It is clear from this definition that the present cause of action is not to recover for a personal injury.

The case of Riddle v. MacFadden, 201 N. Y. 215, 94 N. E. 644, where suit was brought, under chapter 132 of the Laws of 1903 of the state of New York, for an injunction and damages, because the picture of the plaintiff had been circulated for commercial purposes without her consent, is relied upon as supporting the contention that the injury here was a personal one, and comes within the three-year statute of limitations. But Riddle v. MacFadden, supra, has no relevancy, for an injury to the statutory right of privacy is plainly personal, while the damage here is to the property of the estate of which the plaintiff is administratrix, in that there has been a loss of a cause of action against H. H. Vought & Co. belonging to that estate.

General Construction Law, § 25-a, defines "injury to property" as injury "whereby the estate of another is lessened, other than a personal injury, or the breach of a contract." The present action is either for a breach of the contract of retainer, or for an injury to property. In either case, section 48 of the Civil Practice Act applies, and the period of limitation is six years.

Inasmuch, therefore, as six years had not elapsed between February 16, 1923, when the plaintiff's action against H. H. Vought & Co. was lost, and the time when this action was brought, there can be no bar of the statute of limitations, and we must consider whether the plaintiff offered proof which justified submission to the jury of a good cause of action against H. H. Vought & Co.

The iron stairs had been erected by the workmen in the employ of a subcontractor, who did the iron work, and not by the general contractor. At common law there would be no liability of an owner to employés of contractors for injuries received upon the premises, where he had turned over the premises to a contractor to construct a building, unless he was guilty of some affirmative act of negligence affecting the safety of such employés. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. Rep. 703; Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052, 33 Am. St. Rep. 692; Burke v. Ireland, 166 N. Y. 305, 59 N. E. 914; Joyce v. Convent Avenue Construction Co., 155 App. Div. 586, 140 N. Y. S. 663.

But a person who has general supervision of a building under construction may well, even at common law, stand in the position of one who can be said to invite workmen necessarily coming upon the premises, whether they be his own or those of a subcontractor. To such persons the general contractor owes "reasonable care to prevent damage from unusual danger which he knows or ought to know." Indermaur v. Dames, L. R. 2 C. P. 311; Litsch v. Todds, Irons & Robertson, Inc., 239 N. Y. 559, 147 N. E. 194; Pollock on Torts (12 Ed.) page 516. But, irrespective of this, there was section 18 of the New York Labor Law (Consol. Laws, c. 31), providing that:

"A person employing or directing another * * * in the erection, * * * of a * * * building * * * shall not furnish * * * scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged."

In Quigley v. Thatcher, 207 N. Y. 66, 100 N. E. 596, an employee of a subcontractor fell from an unsafe scaffold that had been installed by the general contractor, when he was using it as the only means to get to his work. The New York Court of Appeals held the general contractor liable for the injuries which this employee sustained by reason of the unsafe scaffold. Doubtless there was a common-law liability, if the general contractors installed such a dangerous scaffolding and foresaw that...