Passarelli v. Columbia Eng'g & Contracting Co.

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation200 N.E. 583,270 N.Y. 68
Decision Date03 March 1936
PartiesPASSARELLI v. COLUMBIA ENGINEERING & CONTRACTING CO., Inc., et al.

270 N.Y. 68
200 N.E. 583

PASSARELLI
v.
COLUMBIA ENGINEERING & CONTRACTING CO., Inc., et al.

Court of Appeals of New York.

March 3, 1936.


Proceedings under the Workmen's Compensation Law by Carmine Passarelli, employee, opposed by the Columbia Engineering & Contracting Company, Inc., general contractor, and the Metropolitan Casualty Insurance Company, insurance carrier, and by Emil Eklund, subcontractor, and the Home Indemnity Company, reinsurer of the Southern Surety Company in liquidation, insurance carrier, and by Baker & Yettman, Inc., employer and subsubcontractor. From an order of the Appellate Division (244 App.Div. 850, 279 N.Y.S. 713) affirming an award of the Industrial Board against the Home Indemnity Company, the Home Indemnity Company appeals by permission.

Order of the Appellate Division and award of the Industrial Board reversed, and claim remitted to Industrial Board for a new hearing.


[270 N.Y. 69]Appeal from Supreme Court, Appellate Division, Third Department.

[270 N.Y. 70]T. Carlyle Jones and Anthony Bruce, both of New York City, for appellant.

John J. Bennett, Jr., Atty. Gen. (Hector A. Robichon, of Huntington, L. I., of counsel), for respondent State Industrial Board.


[270 N.Y. 71]Jeremiah F. Connor, of New York City, for respondents, Columbia Engineering & Contracting Co. and others.

FINCH, Judge.

The Columbia Engineering & Contracting Company, Inc., had a general contract for the construction of the White Plains-Terrytown road. The Metropolitan Casualty Insurance Company insured it against liability under the Workmen's Compensation Law (Consol. Laws, c. 67). The policy covered construction, but excluded excavation and other dangerous and hazardous work. Emil Eklund had a subcontract with the Columbia Company ‘for lifting and hauling of the rock and dirt.’ Eklund had insurance with the Southern Surety Company, which insurance was subsequently reinsured by the Home Indemnity Company. This policy covered trucking and included drivers, chauffeurs, helpers, stablemen, garagemen, blacksmiths, and riggers. Clerical office and warehouse employees were excluded.

[200 N.E. 584]

Eklund contracted [270 N.Y. 72]with Baker & Yettman, Inc., for the part of his contract which involved steam shovel excavations. Baker & Yettman had no compensation insurance. They employed the claimant, Passarelli.

Summing up the situation, we find the Columbia Company, the general contractor, insured by the Metropolitan Casualty Company under a policy which does not cover excavations. Eklund, the subcontractor for lifting and hauling rock and dirt, was insured by the Southern Surety Company (reinsured by the Home Indemnity Company) under a policy covering trucking and including drivers, helpers, riggers etc. Baker & Yettman, employer of the claimant Passarelli, were subcontractors of the subcontractor or subsubcontractors of the original contractor, carrying no insurance.

We are concerned here only with Eklund, his insurance carrier, Home Indemnity Company, and the claimant, Passarelli, as an employee of Baker & Yettman. On November 17, 1931, the claimant Passarelli was engaged in work being done by Baker & Yettman under their contract. Passarelli was a fireman on the steam shovel, and was in the vicinity of the shovel when a near-by rock wall suddenly collapsed and fell against him, fracturing his leg and killing Baker of Baker & Yettman. On December 2, 1931, Eklund reported the accident to his broker, and the report was eventually sent to the Southern Surety Company. Because of the accident, Eklund abandoned his contract and attempted to surrender the policy. The Appellate Division (244 App.Div. 850, 279 N.Y.S. 713) has unanimously affirmed an award to Passarelli against the Home Indemnity Company, the reinsurer of...

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11 practice notes
  • Washington Metropolitan Area Transit Authority v. Johnson, No. 83-747
    • United States
    • United States Supreme Court
    • June 26, 1984
    ...Co., 295 N.Y. 306, 310-311, 67 N.E.2d 369, 370-371 (1946) (1946) (quoting Passarelli Columbia Engineering and Contracting Co., 270 N.Y. 68, 75, 200 N.E. 583, 585 (1936)). The more widely held view, however, is that the term "employer" as used in § 5(a) has a statutory definition somewhat br......
  • Sweezey v. Arc Elec. Const. Co.
    • United States
    • New York Court of Appeals
    • April 18, 1946
    ...Engineering Co., 248 N.Y. 107, 161 N.E. 436 * * *.' [67 N.E.2d 371]Matter of Passarelli v. Columbia Engineering & Contracting Co., 1936, 270 N.Y. 68, 75, 200 N.E. 583, 585. Judge Lehman in Clark v. Monarch Engineering Co., supra, in discussing sections 10 and 11 of the Workmen's Compensatio......
  • Otterbein v. Babor & Comeau Co.
    • United States
    • New York Court of Appeals
    • November 24, 1936
    ...court has already held that its application is not to be so restricted. In Matter of Passarelli v. Columbia Engineering & Contracting Co., 270 N.Y. 68, 73, 200 N.E. 583, 584, it was said: ‘The insurance company urges that, since the statute requires notice to the employer as well as to the ......
  • Vicari v. Rialto Fruit Shop, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • May 1, 1969
    ...paid does not automatically result in the avoidance of liability by the carrier (see Matter of Passarelli v. Columbia Eng. & Contr. Co., 270 N.Y. 68, 200 N.E. 583). To avoid liability the carrier issuing the renewal policy has the burden of proving that no contract of insurance came into ex......
  • Request a trial to view additional results
10 cases
  • Washington Metropolitan Area Transit Authority v. Johnson, No. 83-747
    • United States
    • United States Supreme Court
    • June 26, 1984
    ...Co., 295 N.Y. 306, 310-311, 67 N.E.2d 369, 370-371 (1946) (1946) (quoting Passarelli Columbia Engineering and Contracting Co., 270 N.Y. 68, 75, 200 N.E. 583, 585 (1936)). The more widely held view, however, is that the term "employer" as used in § 5(a) has a statutory definition s......
  • Sweezey v. Arc Elec. Const. Co.
    • United States
    • United States Court of Appeals (New York)
    • April 18, 1946
    ...Co., 248 N.Y. 107, 161 N.E. 436 * * *.' [67 N.E.2d 371]Matter of Passarelli v. Columbia Engineering & Contracting Co., 1936, 270 N.Y. 68, 75, 200 N.E. 583, 585. Judge Lehman in Clark v. Monarch Engineering Co., supra, in discussing sections 10 and 11 of the Workmen's Compensation Law, s......
  • Otterbein v. Babor & Comeau Co.
    • United States
    • United States Court of Appeals (New York)
    • November 24, 1936
    ...has already held that its application is not to be so restricted. In Matter of Passarelli v. Columbia Engineering & Contracting Co., 270 N.Y. 68, 73, 200 N.E. 583, 584, it was said: ‘The insurance company urges that, since the statute requires notice to the employer as well as to the Co......
  • Vicari v. Rialto Fruit Shop, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • May 1, 1969
    ...does not automatically result in the avoidance of liability by the carrier (see Matter of Passarelli v. Columbia Eng. & Contr. Co., 270 N.Y. 68, 200 N.E. 583). To avoid liability the carrier issuing the renewal policy has the burden of proving that no contract of insurance came into exi......
  • Request a trial to view additional results

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