Smyth v. City of New York

• Decision Date: 03 October 1911
• Citation: 96 N.E. 409,203 N.Y. 106
• Parties: SMYTH et al. v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 106

96 N.E. 409

SMYTH et al.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

Oct. 3, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Louis Smyth and others, administrators, etc., against the City of New York and others. Judgment of the First Appellate Division (128 App. Div. 463,112 N. Y. Supp. 807) affirming a judgment for defendants, and plaintiffs appeal. Affirmed in part and reversed in part, and new trial ordered.H. De Forest Baldwin, for appellants.

Archibald R. Watson, Corp. Counsel, and De Lancey Nicoll (Terence Farley, of counsel), for respondents.

CULLEN, C. J.

This action is brought by the owners of the Murray Hill Hotel, which abutted on Park avenue, borough of Manhattan, city of New York, to recover damages to such hotel, caused by the explosion of a dynamite magazine located on said avenue during the construction of the rapid transit subway. The construction of the subway at this point was being carried on by one Shaler, a subcontractor. The excavation was being made through rock, which had to be removed by blasting. For this purpose dynamite was employed, the central part of the carriageway of the avenue being fenced against use by the public, and a small wooden building was placed there, in which the dynamite for use was kept. Of the details of the explosion, it is enough to say that, in our opinion, the evidence was sufficient to authorize the jury to find that an excessive amount of dynamite was stored in the magazine, and that proper precautions had not been taken for guarding it against the danger of explosion. The action, however, is not brought against the subcontractor, but against the city of New York, McDonald, who contracted with the city for the construction and subsequent operation of the subway, and the Rapid Transit Subway Construction Company, which rendered financial aid to McDonald in the execution of his contract. The question presented on this appeal is whether any of these defendants is liable for the negligence of the subcontractor.

On February 21, 1900, under the provisions of the rapid transit act (Laws 1891, c. 4; Laws 1892, c. 556; Laws 1894, c. 752; Laws 1896, c. 729; Laws 1900, c. 616), the rapid transit commissioners were authorized to enter into a contract on behalf of the city for the construction and equipment of a railroad upon the route and in accordance with the general plans adopted by the commissioners. Subdivision 5, sec. 24, of the rapid transit act, authorized the contractor to enter upon and underneath the several streets of the city for the prosecution of the work, and the use of such streets was declared to be a public use. In September, 1900, Shaler entered into a subcontract with McDonald to do the work along the line of which the explosion occurred.

[1][2] We think it clear that under previous decisions of this court the city was not liable for the negligence of the contractor to whom the work had been let. Froelich v. City of New York, 199 N. Y. 466, 93 N. E. 79;Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91,53 L. R. A. 550. Nor do we think the city can be held liable on the ground that it suffered a nuisance to be maintained in the street; the street having been withdrawn from its possession and control. It was not liable for the default of the fire department or of the bureau of combustibles. Maxmilian v. Mayor, etc., of N. Y., 62 N. Y. 160, 20 Am. Rep. 468;Ham v. Mayor, etc., of N. Y., 70 N. Y. 459;Smith v. City of Rochester, 76 N. Y. 506, 513;Terhune v. Mayor, etc., of N. Y., 88 N. Y. 247. Nor was there evidence to show that the city authorities were aware that any excessive quantity of dynamite was being stored. The complaint was therefore properly dismissed as against the city, and it may be that the same doctrine that gives immunity to the city would also give immunity to the defendant McDonald, the principal contractor, for the negligence of his independent subcontractor. Whether this is so, it is unnecessary to determine, as we are of opinion that McDonald was liable in this case by the express terms of his contract with the rapid transit commissioners. The contract contained the following provisions:

‘Traffic to be maintained. Indemnification for accidents.-The contractor shall during the performance of the work safely maintain the traffic on all the streets, avenues, highways, parks and other public places in connection with the work, and take all necessary precautions to place proper guards for the prevention of accidents, and put up and keep at night suitable and sufficient lights and indemnify and save harmless the city against and from all damages and costs to which it may be put by reason of injury to the person or property of another or others, resulting from negligence or carelessness in the performance of the work or from guarding the same, or from any improper materials used in its construction, or by or on account of any act or omission of the contractor or the agents thereof.

‘Contractor's liability for damage to abutting property.- The contractor shall be responsible for all damage which may be done to abutting property or buildings or structures thereon by the method in which the construction hereunder shall be done, but not including in such damage any damage necessarily arising from proper construction pursuant to this contract or the reasonable use, occupation or obstruction of the streets thereby.’

An analysis of this portion of the contract shows that it contained three independent and different covenants or agreements on the part of the contractor. The first is one to safely maintain traffic on the public streets, and to take necessary precautions and erect proper guards for the prevention of accidents; the second, in indemnify the city against any or all damage to which it might be put by reason of negligence in the performance of the work; the third, to be responsible for damages to abutting property, buildings, or structures arising from other than the proper construction of the work and the reasonable use and occupation of the streets. As we construe this last clause-a construction supported by the marginal notes-it was not an agreement of indemnity to the city, for that was sufficiently covered by the preceding provisions, but an agreement to be responsible to abutting owners for damages arising from improper construction or unreasonable use and occupation of the streets. Therefore the question before us is further narrowed to this, Can an abutting owner maintain an action under this provision of the contract to which contract he is not a party?

To sustain a negative answer, the respondent relies upon the decision of this court in French v. Vix, 143 N. Y. 90, 37 N. E. 612. In that case the owner of a lot of land entered into a contract with the defendants for the construction of a house, under which the latter agreed to become answerable‘and accountable for any damages that may be done to the property or person of any neighbor’ during the performance of the work. The defendants made a subcontract for the excavation; the subcontractor agreeing to assume all responsibility for damage to persons or property. The plaintiff owned an adjoining house, which was injured by the blasting carried on by the subcontractor. She sought to maintain the action on the provision of the defendant's contract with the owner of the adjacent land. She was defeated in this court on two grounds: (1) That the contract was simply one of indemnity, and was not intended for the plaintiff's benefit. That ground has no application to the present case, under the construction we have given to the defendant's contract. (2) That, even if the contract was intended for her benefit, she could not recover because she was not a party to it, nor in privity with the parties, and as to her it was without consideration. The second ground is but a reiteration of the general rule of law that a stranger to a contract cannot maintain an action upon it, and if the defendant's contract were with private persons that rule of law would be applicable. But even between private parties the rule is not universal, and a third party may maintain an action on a contract against the promisor, where the contract is made for his benefit, and some obligation or duty to the third party rests on the promisee. Thus, where the promisee is indebted to a stranger to the contract, a promise made on sufficient consideration may be enforced by the latter. Lawrence v. Fox, 20 N. Y. 268;Burr v. Beers, 24 N. Y. 178, 80 Am. Dec. 327.

In Todd v. Weber, 95 N. Y. 181, 47 Am. Rep. 20, it was held that the relation of parent and child was sufficient consideration for a contract made by the parent with others for the support of the child, and that the latter might enforce it by action. In Buchanan v. Tilden, 158...