Snyder Plumbing & Heating Corp. v. Purcell
| Decision Date | 28 January 1960 |
| Citation | 9 A.D.2d 505,195 N.Y.S.2d 780 |
| Parties | SNYDER PLUMBING & HEATING CORP., Plaintiff-Respondent, v. John E. PURCELL, doing business under the firm name and style of Purcell Bros., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ralph R. Weiser, New York City, of counsel , for defendant-appellant.
Samuel L. Greenberg, New York City, of counsel , for plaintiff-respondent. Before BOTEIN, P. J., and RABIN, M. M. FRANK, VALENTE and McNALLY, JJ.
This is an appeal from the denial of the defendant's motion for summary judgment.
The parties in this action entered into separate contracts with the County of Rockland in connection with the construction of a home and infirmary. Pursuant to the agreements, the defendant, Purcell, undertook the responsibility of general contractor, and the plaintiff performed the plumbing and drainage work. Both contracts executed by the parties with the County were similar except for the provisions specifically referring to the work to be performed by each.
Before the initiation of this suit, the plaintiff, Snyder Plumbing & Heating Corp., (hereinafter referred to as Snyder) commenced an action against the County for damages attributable to delay caused by the County in the erection of the structure. In the second cause pleaded in that action, Snyder alleged it was damaged in the sum of $10,737.70, the precise amount claimed in this one. The lawsuit against the County was adjusted by the County paying the sum of $11,689.64 to the plaintiff. Snyder delivered a general release to Rockland County specifically releasing it from all claims arising out of the contract, but reserving any rights 'which it may have against any of the other contractors involved in the construction of the project.'
Snyder thereafter demanded arbitration with Purcell on its alleged claim against the defendant, but the relief was denied on the ground that there was no privity between the parties. Snyder did not appeal from that order, but instead it commenced this action to recover damages for the loss it allegedly sustained due to Purcell's procrastination in completing his work as general contractor.
The first cause of action is predicated upon the theory that Snyder is the third-party beneficiary of the contract between Purcell and Rockland County. The pertinent clauses * involved in this dispute are contained in the general conditions of Purcell's contract and, admittedly, are a part of the standard form of the American Institute of Architects.
In its brief, Snyder unequivocally states that Article 34 of the agreement between Purcell and Rockland County gives it the right to proceed ex contractu against Purcell as the third-party beneficiary thereunder. We do not so construe the clause. Article 34 is essentially an indemnity provision solely for the benefit of Rockland County and does not create an obligation to any other contractors performing work on the project. Moreover, the County never claimed or asserted that Snyder's alleged loss was caused by Purcell. In fact, after asserting its claim for damages against the County, Snyder settled its claim and released Rockland County. The County never demanded indemnification from Purcell at any time. Consequently, no derivative liability on the part of the defendant accrues, nor does the duty to indemnify the plaintiff under the defendant's contract with the County arise. The plaintiff's reservation of rights against the defendant in the release delivered to the County cannot enlarge or alter the scope of the indemnity clause.
It is the generally accepted rule that the intent to confer a direct benefit on a third party must clearly appear in order to...
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