Soderman v. Stone Bar Associates

CourtUnited States State Supreme Court (New York)
Writing for the CourtDI GIOVANNA
Citation208 Misc. 864,146 N.Y.S.2d 233
Decision Date17 October 1955
PartiesArthur SODERMAN v. STONE BAR ASSOCIATES, Inc. and McHarma Construction Co., Inc.

Page 233

146 N.Y.S.2d 233
208 Misc. 864
Arthur SODERMAN
v.
STONE BAR ASSOCIATES, Inc. and McHarma Construction Co., Inc.
Supreme Court, Trial Term, Kings County, Part VII.
Oct. 17, 1955.

Melvin Sacks, New York City, for plaintiff (Abraham D. Shackton, Trial Counsel, New York City).

Page 234

Bernard Helfenstein, Brooklyn, for Stone Bar Associates, Inc. (Daniel A. Novok, Trial Counsel, Brooklyn).

Galli & Locker, New York City, for McHarma Const. Co., Inc. (Ralph H. Terhune, Trial Counsel, New York City).

DI GIOVANNA, Justice.

In this action it was stipulated between all counsel that the issues of fact and law arising upon the cross pleadings be submitted to the Court for decision and judgment. After a lengthy trial the jury returned a verdict in favor of plaintiff against Stone Bar Associates, Inc., the general contractor, and McHarma Construction Co. Inc., a subcontractor. Now the Court is required to decide the issues of law and fact arising upon the cross pleadings.

Plaintiff was an iron worker in the employ of Atlas Erection Co. Inc., a subcontractor of the general contractor, in connection with construction of an apartment house at Third Avenue between 99th and 100th Streets in Brooklyn. In the course of his work he was required to carry heavy steel beams and girders from one place to another and to insert those beams in [208 Misc. 865] recessed pockets which formed part of concrete walls of the entranceway to the building. On April 3, 1953, while using the top of one of these walls as a way to another part of the building, and while carrying a heavy girder, the plaintiff stepped upon a portion of the wall which appeared to him to be a solid, continuous concrete portion. He was precipitated to the floor below, a distance of about ten or twelve feet, thereby sustaining serious personal injuries.

The testimony in the case established that, after steel girders had been placed in these recessed pockets, bricklayers employed by another subcontractor, the codefendant McHarma Construction Co. Inc., were required to close up the remaining spaces with brick and mortar. The testimony is clear that the bricklayers had been working in the vicinity of the place of the happening of the accident at least up to March 27, 1953. The testimony of the shop steward of the bricklayers established as a fact in this case that, even though a beam had not been placed in this particular pocket, the bricklayers nevertheless placed unmortared loose bricks in this hole giving it the appearance of a solid way. Such a fact is implicit in the finding of the jury. The plaintiff charged the general contractor with negligence in that it failed to provide to him a safe place to work and a safe way or passage to a safe place to work, and charged the defendant subcontractor with negligence in that it actually created the dangerous condition which caused the injury to the plaintiff.

A serious question in this case, and one evidently decided by the jury, was whether the general contractor had notice of the existence of this condition. Its existence for at least a few days is presumed as a fact by reason of the jury's verdict. The Court finds as a fact in this case in its decision in respect to the cross pleadings that the general contractor

Page 235

had only constructive notice of the existence of the dangerous condition. Implicit in the jury's verdict is a finding that the general contractor had notice. Whether this notice was actual or constructive cannot be deduced from the jury's verdict, but nevertheless the testimony, in the opinion of the Court, is overwhelming, and leads to the conclusion only that constructive notice was proven.

The subcontractor submitted a brief in connection with its motion for dismissal of the cross complaint. It argues that both defendants were in pari delicto. The cases cited in the defendant's brief do not support that view. The case of Sheffield v. Yager, 287 N.Y. 604, 38 N.E.2d 710, was one wherein the verdict established the fact that both defendants were active tortfeasors. In Eifert v. United States Fidelity & Guaranty Co., 261 [208 Misc. 866] App.Div. 1081, 26 N.Y.S.2d 879, the language used must be supplemented by reference to the Trial Term decision, 177 Misc. 516, 31 N.Y.S.2d 148, where it appears that this involved scaffolding. It is clear that cases involving violations of Sections 240 and 241 of the Labor Law are distinguishable from those involving Section 200 of the Labor Law. In the latter, questions of active and passive negligence may arise; in the former, violators thereof are all guilty of active negligence. Hence this case has no application to the problems herein involved.

Scott v. Curtis, 195 N.Y. 424, 88 N.E. 794, 40 L.R.A.,N.S., 1147, involved an action by an owner of property to whom coal had been delivered by the defendant for judgment by way of indemnity, judgment against said owner having already been rendered in another action. Judgment by way of indemnification was sought for the very reasons which cogently argue for such disposition in the instant case. 195 N.Y. at page 428, 88 N.E. at page 795, Chase, J., said:

'The liability of the owner of real property for injury to a passer-by for negligence in covering or in failing to cover or guard such a hole in a sidewalk does not relieve the active or actual wrongdoers from the consequences of their acts. The liability to the passer-by is joint. As between themselves, the active wrongdoer stands in the relation of an indemnitor to the person who has been held legally liable therefor. * * * When an employe or independent...

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7 practice notes
  • Lanza v. State of New York, No. 236
    • United States
    • United States Supreme Court
    • June 4, 1962
    ...ed. 1956) 678. See Commissioner of Public Welfare v. Jackson, 265 N.Y. 440, 441, 193 N.E. 262; Soderman v. Stone Bar Associates, Inc., 208 Misc. 864, 867, 146 N.Y.S.2d 233, 236. For all we can tell, the Court of Appeals concluded that the petitioner's 'constitutional rights were not violate......
  • Staklinski v. Pyramid Elec. Co.
    • United States
    • New York Supreme Court Appellate Division
    • November 25, 1958
    ...without opinion it does not mean that the Appellate Division approved the opinion of Special Term. Soderman v. Stone Bar Associates, 208 Misc. 864, 867, 146 N.Y.S.2d 233, 236, affirmed 3 A.D.2d 680, 159 N.Y.S.2d 50, leave to appeal denied 3 A.D.2d 755, 160 N.Y.S.2d 827; Commissioner of Publ......
  • Employers' Liability Assur. Corp. v. Empire City Iron Works, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • March 16, 1959
    ...N.E.2d 463; Ruping v. Great Atlantic & Pacific Tea Co., 283 App.Div. 204, 207, 126 N.Y.S.2d 687, 690; Soderman v. Stone Bar Associates, 208 Misc. 864, 146 N.Y.S.2d 233, affirmed 3 A.D.2d 680, 159 N.Y.S.2d 50). It follows that appellant is entitled to be indemnified by respondent because the......
  • Peskin v. Port of New York Authority
    • United States
    • United States State Supreme Court (New York)
    • January 27, 1959
    ...159 N.Y.S.2d 50 strongly relied upon by the Authority and Cauldwell. It is not in point. In that case the trial court in his decision (208 Misc. 864, 146 N.Y.S.2d 233, 234) said: 'The Court finds as a fact in this case in its decision in respect to the cross pleadings that the general contr......
  • Request a trial to view additional results
7 cases
  • Lanza v. State of New York, No. 236
    • United States
    • United States Supreme Court
    • June 4, 1962
    ...ed. 1956) 678. See Commissioner of Public Welfare v. Jackson, 265 N.Y. 440, 441, 193 N.E. 262; Soderman v. Stone Bar Associates, Inc., 208 Misc. 864, 867, 146 N.Y.S.2d 233, 236. For all we can tell, the Court of Appeals concluded that the petitioner's 'constitutional rights were not violate......
  • Staklinski v. Pyramid Elec. Co.
    • United States
    • New York Supreme Court Appellate Division
    • November 25, 1958
    ...without opinion it does not mean that the Appellate Division approved the opinion of Special Term. Soderman v. Stone Bar Associates, 208 Misc. 864, 867, 146 N.Y.S.2d 233, 236, affirmed 3 A.D.2d 680, 159 N.Y.S.2d 50, leave to appeal denied 3 A.D.2d 755, 160 N.Y.S.2d 827; Commissioner of Publ......
  • Employers' Liability Assur. Corp. v. Empire City Iron Works, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • March 16, 1959
    ...N.E.2d 463; Ruping v. Great Atlantic & Pacific Tea Co., 283 App.Div. 204, 207, 126 N.Y.S.2d 687, 690; Soderman v. Stone Bar Associates, 208 Misc. 864, 146 N.Y.S.2d 233, affirmed 3 A.D.2d 680, 159 N.Y.S.2d 50). It follows that appellant is entitled to be indemnified by respondent because the......
  • Peskin v. Port of New York Authority
    • United States
    • United States State Supreme Court (New York)
    • January 27, 1959
    ...159 N.Y.S.2d 50 strongly relied upon by the Authority and Cauldwell. It is not in point. In that case the trial court in his decision (208 Misc. 864, 146 N.Y.S.2d 233, 234) said: 'The Court finds as a fact in this case in its decision in respect to the cross pleadings that the general contr......
  • Request a trial to view additional results

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