Ryan v. Feeney & Sheehan Bldg. Co.

• Decision Date: 21 October 1924
• Citation: 145 N.E. 321,239 N.Y. 43
• Parties: RYAN v. FEENEY & SHEEHAN BLDG. CO.
• Court: New York Court of Appeals Court of Appeals

239 N.Y. 43

145 N.E. 321

RYAN

v.FEENEY & SHEEHAN BLDG. CO.

Court of Appeals of New York.

Oct. 21, 1924.

Action by Alice Ryan, as administratrix of Edward F. Ryan, deceased, against the Feeney & Sheehan Building Company. From a judgment of the Appellate Division (208 App. Div. 757, 202 N. Y. S. 950), affirming judgment on directed verdict for defendant, dismissing complaint, plaintiff appeals by permission.

Affirmed.

See, also, 202 App. Div. 45, 195 N. Y. S. 365; 203 App. Div. 838, 196 N. Y. S. 950; 208 App. Div. 825, 203 N. Y. S. 951.

Appeal from Supreme Court, Appellate Division, Third department.

Leary & Fullerton, of Saratoga Springs (Walter A. Fullerton and James A. Leary, both of Saratoga Springs, of counsel), for appellant.

Rosendale, Hessberg, Dugan & Haines, of Albany (P. C. Dugan, of Albany, of counsel), for respondent.

CRANE, J.

While the judgment in this case must be affirmed, we prefer to place our decision on other grounds than those stated by the Appellate Division.

The defendant constructed a building and a canopy according to plans and specifications furnished it by the United States government and its duly authorized architect. The defendant was a builder; it was not an architect. The contract provided:

‘Extent of the work. The contractor shall in the shortest possible time, furnish the labor, material, tools, machinery, equipment, facilities, and supplies, and do all things necessary for the construction and completion of the following work: Quartermaster Interior Storage Depot at South Schenectady, New York, in accordance with the drawings and specifications to be furnished by the contracting officer, and subject in every detail to his supervision, direction, and instruction.

‘The contracting officer may, from time to time, by written instructions or drawings issued to the contractor, make changes in said drawings and specifications, issue additional instructions, require additional work, or direct the omission of work previously ordered, and the provisions of this contract shall apply to all such changes, modifications, and additions with the same effect as if they were embodied in the original drawings and specifications. The contractor shall comply with all such written instructions or drawings.’

The architect and the government officers employed upon the work were the ones who knew or should have known about the strength of iron supports and braces and the proper angles at which they should be placed. It is conceded that the defendant fully complied with the plans and specifications as it was required to do. The canopy fell down because the supporting irons or braces did not have sufficient spread or were fastened at too low an angle with the base. How was an ordinary contractor or builder to know this? The matter was for the engineers and architects to determine and design. The builder's experience might have suggested that another construction would have been better but it was not its judgment on these matters which was to be taken, and it was justified in relying upon the experience and skill of the architect and supervising engineer.

The evidence in the case given by the experts after the accident is that the fastening was not proper. Following is the evidence upon the subject:

‘Q. I wish you would look at this plan in question, Defendant's Exhibit 2.

‘[Witness examines it.]

‘Q. You have looked at it now? A. Yes, sir.

‘Q. I ask you if that plan was proper for the construction of that canopy taking into consideration the size of the rod, the weight of the canopy, the distance apart of the rods, and the manner in which the rod was welded to the plate at the end? A. In my opinion it is improperly constructed.

‘Q. That is obvious to you looking at that plan? A. Yes, sir.’

There was nothing to show that the plans and specifications were so obviously defective that a contractor of average skill and ordinary prudence would not have attempted the construction according to the plans. This is the rule to be applied. A builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow, unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury. Such was not the case here.

In Hardie v. Boland, 205 N. Y. 336, 98 N. E. 661, the plaintiff's intestate while standing upon a scaffold was killed by being thrown from the scaffold by the collapse of a chimney. The contractor was erecting the chimney in accordance with plans made by architects who were employed by the owners. The court said:

‘The fall of the chimney in these circumstances may be prima facie evidence of the negligence...