Semanchuck v. Fifth Ave. & Thirty-Seventh St. Corp...Gotham Const. Corp.. v. Aetna Fireproofing Co.

• Decision Date: 22 April 1943
• Citation: 290 N.Y. 412,49 N.E.2d 507
• Court: New York Court of Appeals Court of Appeals
• Parties: SEMANCHUCK v. FIFTH AVE. & THIRTY-SEVENTH ST. CORPORATION. GOTHAM CONST. CORPORATION v. AETNA FIREPROOFING CO.

290 N.Y. 412

49 N.E.2d 507

SEMANCHUCK

v.FIFTH AVE. & THIRTY-SEVENTH ST. CORPORATION.

GOTHAM CONST. CORPORATION

v.AETNA FIREPROOFING CO.

Court of Appeals of New York.

April 22, 1943.

Appeal from Supreme Court, Appellate Division, First Department.

Separate action by Harry Semanchuck against Fifth Avenue & Thirty-Seventh Street Corporation and against Gotham Construction Corporation for injuries. The first-named defendant filed a cross-claim against the Gotham Construction Corporation. The Aetna Fireproofing Company was impleaded by Gotham Construction Corporation. From a judgment of the Supreme Court, Appellate Division, 264 App.Div. 329, 35 N.Y.S.2d 305, which affirmed in part and reversed in part a judgment of the court at Trial Term, Cohalan, J., the Fifth Avenue & Thirty-Seventh Street Corporation and the Gotham Construction Corporation appeal on leave granted by the Appellate Division, 265 App.Div. 813, 37 N.Y.S.2d 831. Motion to dismiss appeal was denied in 289 N.Y. 635, 44 N.E.2d 420.

Judgment of Appellate Division reversed in part and affirmed in part. William L. Shumate, of New York City, for defendant-appellant.

Raymond D. O'Connell and Edmond B. Butler, both of New York City, for defendant, respondent-appellant.

Samuel Saline, of New York City, for plaintiff-respondent.

Charles F. Bachmann, John P. Smith, and Thomas F. Keane, all of New York City, for defendant-respondent.

LEHMAN, Chief Judge.

The plaintiff, an employee of AEtna Fireproofing Company, was injured while working in a building then in course of construction. Defendant, Fifth Avenue and 37th Street Corporation, is the owner of the real property. The owner made a contract with Gotham Construction Corp., hereinafter called the ‘contractor,’ for the masonry, lathing, plastering, carpentry and other work in the erection of the building. The owner supervised all the work and was, in effect, the general contractor for the construction of the building. The Labor Law, Consol.Laws, c. 31, in section 241, places upon ‘all contractors and owners, when constructing * * * buildings' direct and positive duties for the ‘protection of employees on building construction * * * work,’ including the duty thoroughly to plank over floor beams of iron and steel (subd. 4) and the duty to enclose and fence in by barriers the sides of a shaft or opening in the floor of a building under construction. The plaintiff, claiming that his injuries were the result of a fall through a shaft or opening not enclosed or fenced in by barriers as required by statute, brought this action to recover the consequent damages.

The jury found that both the owner and the contractor were negligent in failing to provide the barriers and guards required by section 241 of the Labor Law. The finding is sustained by the evidence. The statutory duty imposed upon both the owner and contractor was positive and could not be delegated and the provision in the contract between the owner and the contractor, whereby the contractor agreed to ‘erect and maintain all such temporary work as may be required for the protection of the public and those employed in or about the building, including guards and barricades around openings' confers upon the owner no immunity for damages to another, resulting from the failue of the owner to perform the duty imposed upon by statute. So the Appellate Division held by statute. So the Appellate Dvision held and all the judges of this court agree that the judgment in favor of the plaintiff against both owner and contractor should be affirmed. The question remains whether the contractor has made a valid agreement to indemnify the owner against liability for damages resulting from the failure of both to perform their statutory duty.

In its contract with the owner the contractor agreed: ‘Article 28 Indemnity: In addition to the liability imposed upon the contractor by law, and by article 27, which liability is not impaired or otherwise affected hereby, the Contractor hereby assumes the obligation to save the Owner harmless and indemnifty him from every expense, liability or payment, by reason of any injury to any person or persons, including death, resulting from any action or operation under this contract.’ The owner made a cross-claim against the contractor for indemnity. The trial court rejected the cross-claim, but the Appellate Division sustained the cross-claim and granted judgment accordingly.

In the case of Walters v. Rao Electrical Equipment Co., 289 N.Y. 57, 43 N.E.2d 810, 811, a workman employed by a subcontractor upon the construction of a building negligently dropped a piece of pipe which fell through a space between the floor beams and caused serious injuries to a workman of a different subcontractor who was working one floor below. The accident would not have happened, at least so the jury found, if the general contractor had performed the statutory duty imposed upon him by subdivision 4 of section 241 of the Labor Law to plank over the floor beams thoroughly. It would not have occurred if the workman of a subcontractor had exercised reasonable care in his work. A jury found that the negligence of the general contractor and the negligence of the employee of the subcontractor were concurring causes of the accident and upon its finding the plaintiff was entitled to judgment against both the general contractor and the subcontractor. The general contractor by cross-complaint sought in that action indemnity from the subcontractor under a clause in their contract which provided the subcontractor will indemnify the contractor from claims for negligence in the course of the performance of the work. This court held that the agreement should not be construed to indemnify the general contractor against its own negligence and rejected the general contractor's claim for indemnity. We are told now that the decision in that case requires the rejection of the claim for indemnity, made under a similar clause by the general contractor in this case against a subcontractor.

Three judges, including the writer of this opinion, dissented from the decision in the earlier case, insofar as it held that the general contractor was not, under the contract, entitled to indemnity from the subcontractor. The controversy over the applicable rule to be followed in the construction of the indemnity agreement has been resolved by that decision. The authoritative force of a decision as a precedent in succeeding cases is not determined by the unanimity or division in the court. The controversy settled by a decision in which a majority concur should not be...