Schwartz v. Merola Bros. Constr. Corp.

• Decision Date: 11 March 1943
• Citation: 290 N.Y. 145,48 N.E.2d 299
• Parties: SCHWARTZ et al. v. MEROLA BROS. CONSTRUCTION CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

290 N.Y. 145

48 N.E.2d 299

SCHWARTZ et al.

v.MEROLA BROS. CONSTRUCTION CORPORATION et al.

Court of Appeals of New York.

March 11, 1943.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Bernard Schwartz, an infant, by David Schwartz, his guardian ad litem, and David Schwartz against Merola Brothers Construction Corporation, Bank for Saving in the City of New York, New Deal Terrazzo Company, Inc., and Cerussi Marble & Tile Company, Inc., for injuries received from fall of bags of pebbles on the infant, and for loss of services of such infant. The defendant bank cross-claimed for indemnity against the other defendants, and the defendant Cerussi Marble & Tile Company, Inc., cross-claimed over against defendant New Deal Terrazzo Company, Inc. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, 263 App.Div. 631, 34 N.Y.S.2d 220, which affirmed in part and reversed in part the judgment entered upon the verdict of a jury and upon verdicts directed by the court at the trial term (Leary, J.), the defendants except the defendant New Deal Terrazzo Company, Inc., appealed. The motion to dismiss appeal was denied, 289 N.Y. 756, 46 N.E.2d 357.

Affirmed.

RIPPEY, LEWIS, and CONWAY, JJ., dissenting. George J. Stacy, of New York City, and John A. Gleason of Manhasset, for appellant Merola Bros. Construction Corporation.

Ralph H. Terhune, of Chappaqua, and E. C. Sherwood, of New York City, for appellant and respondent Bank for Savings in the City of New York.

Olin S. Nye, Brendan C. Kelly, and Reginald V. Spell, all of New York City, for appellant and respondent Cerussi Marble & Tile Company, Inc.

Adolph S. Ziegler, Harry H. Lipsig, and Albert Lee Singer, all of New York City, for plaintiffs respondents.

FINCH, Judge.

The infant plaintiff was injured when bags of terrazzo pebbles, piled on the sidewalk in connection with the work of renovating a building, shifted and fell upon him. This action to recover for personal injuries and for loss of services was brought against four defendants, The Bank for Savings in the City of New York, as owner of the building, hereinafter referred to as the Bank; Merola Bros. Construction Corp., the general contractor, hereinafter referred to as Merola; Cerussi Marble & Tile Co., Inc., Merola's subcontractor, hereinafter referred to as Cerussi; and New Deal Terrazzo Company, Inc. Cerussi's subcontractor for the terrazzo work, hereinafter referred to as New Deal.

The defendant Bank cross-claimed for indemnity against the other defendants Merola, Cerussi and New Deal, and Cerussi cross-claimed over against New Deal.

Two questions are raised upon this appeal, first, whether there is any evidence in the record sufficient to justify the verdict in plaintiffs' favor against the four defendants, and secondly, whether recovery should be allowed on the aforementioned cross-claims

Briefly stated, the facts show that the Bank entered into a contract with Merola as general contractor to renovate a building owned by the Bank and located on East 83rd street in New York City, Merola subcontracted Cerussi to do certain tiling, terrazzo and other work. Cerussi subcontracted the terrazzo work on the floors to New Deal, a specialist in that field.

The terrazzo work on the floors was started about the beginning of August, 1936; the accident to the infant plaintiff occurred on August 18th. For about a week prior to the accident, bags of terrazzo pebbles had been piled on the sidewalk in front of the building. There is evidence that these bags were piled negligently so that they would be likely to shift and fall upon passersby. Moreover, Merola had obtained permits from the city of New York to pile materials on the sidewalk and there is evidence that these bags were piled in a manner which violated the permits. There is no direct evidence as to which of the defendants piled the bags of terrazzo pebbles upon the sidewalk. These bags were ordered by New Deal and prima facie were to be used by New Deal. The Bank and Merola, of course, had nothing to do with terrazzo work except as Merola was the general contractor. Cerussi used terrazzo chips to make stair treads for installation in the building, but an officer of the corporation testified that these stair treads were fabricated at Cerussi's own shop. New Deal was charged with the work of laying terrazzo floors, and it was admitted that this work was done on the premises. It would appear, therefore, that bags of terrazzo bebbles were ordered by New Deal for its own use and, presumably, these were the bags that were negligently piled upon the sidewalk for a week before the accident. Thus New Deal at least was primarily responsible for the injury to the infant plaintiff.

The other three defendants, in addition to New Deal, were properly held liable to plaintiffs because there is evidence sufficient to show notice to them of the existence of the dangerous condition on the sidewalk. Under the contract between the Bank and Merola, the permits obtained by Merola from the city of New York had to be filed with the Bank's architect, so that the Bank had the opportunity of discovering that materials were being piled upon the sidewalk in violation of the permits. Merola, as the general contractor, had, as such, a duty of general superintendence of the work (Rosenberg v. Schwartz, 260 N.Y. 162, 166, 183 N.E. 282;Delaney v. Philhern Realty Holding Corporation, 280 N.Y. 461, 21 N.E.2d 507), and Cerussi, on his part as general contractor as against New Deal, had subcontracted the terrazzo work to the latter. Phoenix Bridge Co. v. Creem, 102 App.Div. 354, 92 N.Y.S. 855, affirmed 185 N.Y. 580, 78 N.E. 1110; Rosenberg v. Schwartz, supra.

The above state of facts is sufficient to establish the liability both of the owner of the building and of the contractors doing the work. It is true that an owner is not liable for the negligence of an independent general contractor unless the duty of care in performing the work is non-delegable. In other words, where the danger arises merely because of the negligence of the independent contractor or his employees, which negligence is collateral to the work and which is not reasonably to be expected, the owner cannot be held liable to a third party. But where from the nature of the work the duty of care in its performance is non-delegable and the owner is put on notice of the existence of such a dangerous condition, he may properly be held liable to a third party injured by the negligent act of a subcontractor or his employees. Wright v. Tudor City Twelfth Unit, Inc., 276 N.Y. 303, 307, 12 N.E.2d 307, 115 A.L.R. 962. In the case at bar, under the instructions of the trial judge, the jury found that a dangerous condition was created upon the sidewalk in the course of the work and that the owner of the building had notice thereof. Thus the owner was properly held liable for the injuries caused to the infant plaintiff. Likewise, Merola and Cerussi have been properly held liable. In Rosenberg v. Schwartz, 260 N.Y. 162, 166, 183 N.E. 282, 283, it was said that ‘An independent general contractor, who is present and sees and realizes that a subcontractor is doing his work in an unlawful and dangerous manner, may be liable for an injury resulting directly to a third person from such unlawful and negligent conduct.’ In Delaney v. Philhern Realty Holding Corporation, 280 N.Y. 461, 467, 21 N.E.2d 507, a general contractor was held liable for the act of his subcontractor in creating a dangerous condition on the public sidewalk, of which fact the general contractor had notice. Consequently, under well established principles, all the defendants were properly held liable on the evidence in the record. Various errors in the trial are urged by the defendants as requiring a new trial in their favor against the plaintiffs. These errors, however, were all discussed at length in the opinions of the Appellate Division and were there properly disposed of.

This brings us to the important question in the case, whether the Bank as owner of the building may recover over on its cross-claims against the other defendants.

The Bank's cross-claim against Merola is based upon a written contract of indemnity, whereas its right to recover over against the other defendants rests solely upon common law principles. With respect to its rights over against Merola, there are two questions to be determined, first, whether Merola is liable under the indemnity agreement for the negligent acts of a subcontractor, and second, whether the Bank itself is free from any active participation in causing the injury to plaintiff, which would defeat its rights under the indemnity agreement. The Bank's right to recover over against the other two defendants,namely, Cerussi and New Deal, depends upon proof that they were the primary wrongdoers, and the Bank guilty only of passive negligence.

The contract of indemnity between the Bank and Merola is contained in paragraph 13 of the agreement between them and provides that ‘13. Indemnification: (1) The Contractor (Merola) agrees to indemnify and save harmless the Owner against loss * * * by reason of the liability imposed by law upon the Owner for damages because of bodily injuries * * * accidentally sustained by any person or persons and/or on account of damage to property, due to any act or omission of the Contractor, his employees or agents, arising out of the work of the Contractor as contemplated under this Agreement * * *.’

The determination of whether or not the negligent acts of New Deal are covered by the above quoted indemnity agreement depends primarily on discovering the intention of the Bank and Merola in formulating their agreement. The indemnity agreement is sufficiently broad, so that the Bank would be entitled to be indemnified by the general contractor Merola unless the Bank was guilty of active negligence. The same form of words, namely, ‘liability...