Zurich Gen. Accident & Liab. Ins. Co. v. Watson Elevator Co.

• Decision Date: 06 May 1930
• Citation: 253 N.Y. 404,171 N.E. 688
• Parties: ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. WATSON ELEVATOR CO., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

253 N.Y. 404

171 N.E. 688

ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited,

v.WATSON ELEVATOR CO., Inc., et al.

Court of Appeals of New York.

May 6, 1930.

Action by the Zurich General Accident & Liability Insurance Company, Limited, against the Watson Elevator Company, Incorporated, and another. From a judgment of the Appellate Division (227 App. Div. 778, 237 N. Y. S. 927) affirming a judgment of the Trial Term entered on a verdict directed by the court in favor of the plaintiff, a jury having been waived, defendant Cross & Brown Company appeals.

Reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, First department.

Walter L. Glenney, of New York City, for appellant.

Fred H. Rees, of New York City, for respondent.

HUBBS, J.

The appellant, Cross & Brown Company, is a domestic corporation engaged, among other things, in the business of acting as managing agent for owners of buildings and real property. The Rudolph Wurlitzer Company, Inc., was the owner, under a long-term lease, of a sixteen-story store and office building on West Forty-Second street in the borough of Manhattan, New York City. In June, 1921, the appellant and the owner of the building entered into a contract in writing in which it was agreed that the appellant should act as agent of the owner for the leasing of space in the building for a commission of one per cent. on the gross rental on leases closed by it. It also agreed to take over the management of the building for the sum of $2,500 per year, the consent of the owner to be first obtained before any outlay for alterations or repairs should be contracted for except in case of emergency repairs.

The first four floors of the building were occupied by the owner for store purposes. The appellant entered upon the performance of its duties under the contract. It hired employees to operate the elevators and to perform other work about the building. When employees were hired by appellant they were each required to sign a card which recited that employment was accepted with Rudolph Wurlitzer Company, owner of the building, and that employment might be discontinued by the owner or Cross & Brown Company, its agent, at any time without notice. The appellant paid the employees their wages and each month sent a statement of the exact amount so expended to the owner, which remitted the amount to the appellant. The appellant did not receive any percentage or commission on the wages, or make any charge against the owner for such service, except as it was included in the $2,500 yearly compensation received by it. The owner secured indemnity insurance in its name which covered elevator employees. The appellant discharged employees on occasion and hired others. It hired a man who was classified as superintendent of the building and who had the supervision of the employees and authority to hire and discharge. His wages were paid by the owner in the same way as the wages of the other employees and he signed the same kind of card stating that he was in the employment of the owner.

The appellant had a separate department for operating buildings and had an operating manager who had charge of building superintendents. He was paid by the appellant. The owner had exclusive charge of the first four floors of the building with which floors the appellant had nothing whatever to do. The appellant considered itself responsible for the proper management of the building outside of the part occupied exclusively by the owner.

On October 22d, 1923, a passenger in an elevator in that part of the building under the management of the appellant met with an injury which caused his death. The plaintiff's version of the accident, which has been accepted by the trial court, was that on the morning of the accident the elevator operator, on entering the elevator, discovered on the floor of the elevator a broken spring which controlled the position of the operating lever, that he called the attention of the superintendent of the building to it and was told by the superintendent to use the elevator as it was, and that the defect caused the accident.

An action was commenced by the personal representative of deceased against the owner to recover damages because of his negligent death. The owner was insured by the plaintiff in this action. It settled the action...