
    Lord Electric Company, Respondent, v. The Barber Asphalt Paving Company, Appellant.
    First Department,
    December 31, 1914.
    Practice —misjoinder of causes of action on contract and for tort.
    A complaint in an action by a municipal contractor against a sub-contractor, which alleges: First, that by reason of the failure of the defendant to perform its contract obligation to replace and repair any work damaged by it, and to take proper precautions to protect the work from injury by fire, the plaintiff has been held liable by the city in an action for damage to its property caused by fire resulting from defendant’s negligence, and that the amount of the liability of defendant has been determined in said action, of which it had due notice and an opportunity to defend; and, second, that the plaintiff’s property has been damaged by fire owing to the negligence and carelessness of the defendant, and does not allege that the fire which caused the damage to the plaintiff’s property was the same as that which damaged the property of the city, states separate causes of action, one upon contract and the other for a tort which cannot be joined.
    Ingraham, P. J., and Dowling, J., dissented, with opinion.
    Appeal by the defendant, The Barber Asphalt Paving Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of November, 1914, overruling a demurrer to the complaint, and also as stated in the notice of appeal from the court’s decision.
    
      L. Laflin Kellogg [ William K. Hartpence with him on the brief], for the appellant.
    
      Frederick Hulse, for the respondent.
   Laughlin, J.:

The complaint contains two counts or causes of action. The first is to recover the sum of $27,488.56, which plaintiff alleges it has, in effect, been obliged to pay to the city of New York, owing to the failure of the defendant to properly perform a subcontract for part of the contract work which the plaintiff had agreed with the city of New York to perform, together with the sum of $530.75 costs recovered against it by the city. On the 18th day of June, 1909, the plaintiff entered into a contract with the city of New York for certain surface construction work on the Manhattan bridge over the East river, which the city was then constructing; and with the consent of the city the plaintiff employed the defendant to do the asphalting embraced in its contract. Through the negligence of the employees of the defendant in overheating a kettle of tar, or tar and asphalt, during the performance of the work, a fire was started damaging ties and other work to an extent which required the expenditure by the city for replacement and repairs of the amount, less the item of costs, for which this action is brought, and in an action by the plaintiff against the city to recover on its contract for said work the city pleaded said amount, and another item relating to another fire, as damages caused by the failure of the plaintiff to take “ample precautions” to protect the finished work against injury by fire as required by the express provisions of the contract. The plaintiff pleads the material provisions of its contract with the city and alleges, among other things, that by the express provisions of its contract with the defendant, the defendant undertook and agreed to accept all the conditions and perform all the obligations with respect to said work imposed upon the plaintiff by its contract with the city, and that it thereby became the duty of the defendant to take ample precautions to protect the work and the structure, so far as completed, against injury by fire, and to make good at its own cost and expense and to the satisfaction of the engineer representing the city the parts of the work damaged through its failure to take such precautions, as the plaintiff was expressly obligated to do by its contract with the city. The plaintiff alleges that after the city interposed its answer in the action by the plaintiff to recover the balance of the contract price of the work, pleading that the city was obliged to expend said amount for repairing and replacing the damaged parts of the work, the plaintiff duly notified the defendant in writing of the commencement and pendency of said action and of the issues therein involved, and particularly of the claim made by the city for an offset or deduction from the contract price of the work on account of the damages caused by fire, and duly demanded that the defendant undertake the conduct of the action in so far as it affected said damages claimed on account of the fire, and that it defend the plaintiff against said claim made by the city, and that the plaintiff would look to it for indemnity.

This court in that action held that the city was entitled to retain and deduct from the amount due the plaintiff under the contract the cost of such replacement and repairs (Lord Electric Co. v. City of New York, 160 App. Div. 344), and the judgment in that action is conclusive on defendant with respect to the amount the city was entitled to deduct and with respect to its right to make the deduction from the contract price provided the defendant was responsible for the fire. (City of New York v. Corn, 133 App. Div. 1; City of New York v. Lloyd, 148 id. 146.)

The second count is to recover $11,500 for damages alleged to have been caused to property of the plaintiff by fire owing to the negligence and carelessness of the defendant in managing furnaces used for heating asphalt, and in failing to guard and control the fires therein during the performance of said work. It is not alleged that the fire which caused the damages to the plaintiff’s property was the same fire as that which damaged the property of the city.

The grounds of the demurrer are (1) that causes of action have been improperly united, in that a cause of action on a contract of indemnity, express or implied, has been united with a cause of action for tort, not arising out of the same transaction or transactions connected with the same subject of action; and (2) that it appears upon the face of the first cause of action that the facts are insufficient to constitute a cause of action'.

There is no merit in the second ground of demurrer. It is quite clear that the first count of the complaint sufficiently alleges a cause of action, which may briefly be stated to be one for the failure of the defendant to perform its contract obligation to replace and repair any work damaged by defendant during the construction, and to take proper precautions to protect the work from injury by fire; and that the amount of the liability has been determined in the action by the plaintiff against the city of which the defendant had due notice and an opportunity to defend against the claim made by the city therein. -

The demurrer for misjoinder of causes of action was overruled by the Special Term on the theory that regardless of whether the first cause of action is on contract or in tort, it is for an injury to property, and that both causes of action are for injuries to property within the contemplation of the provisions of section 3343, subdivision 10, of the Code of Civil Procedure, and that such causes of action may be joined under section 484 of the Code of Civil Procedure. I am unable to agree with that theory. The first cause of action is not for an injury to the plaintiff’s property. The only manner in which the plaintiff’s property has been injured on account of the facts therein alleged is by the plaintiff’s being unable to collect the amount due and owing to it from the city on account of the defendant’s failure to perform its sub-contract in the manner agreed. That, I think, is not an injury to property within the legislative definition. In one view of the question it is unnecessary to decide whether the first cause of action is for negligence or is for the breach of a contract, express or implied, because in either event the causes of action as pleaded have been improperly joined, for it is not alleged that they arose out of the same transaction, or transactions connected with the same subject of action, and, therefore, even if the cause of action be for negligence it could not be joined with the other tort action. It may be, however, that the damage to the plaintiff’s property which is the subject of the second cause of action was caused by the same fire which damaged the property of the city, and that on that theory they both arise from the same cause, and, therefore, it is proper that we should decide whether the objection raised by the demurrer can be obviated by amendment, or whether it will become necessary to sever the action. If the damages to which the plaintiff was subjected, as alleged in the first count, were due to any act or omission on the part of the defendant, without the existence of any contract obligation or duty on its part to the plaintiff, then it might well be claimed that the plaintiff is merely seeking to enforce by subrogation a cause of action for negligence, and that it would, therefore, not be an action on contract, but one sounding in tort (City of Rochester v. Campbell, 123 N. Y. 405, 413; Oceanic S. N. Co. v. Co. T. E., 134 id. 461; 144 id. 663; Connecticut Mutual Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265); but where, as here, the action proceeds on the theory that the defendant is liable as an indemnitor, and the liability is predicated upon a contract, express or implied, and upon the ground that as between the parties the primary duty or obligation, on which plaintiff has been obliged to respond in damages, rested upon the defendant, then the action is, I think, based on contract. (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; Dunn v. Uvalde Asphalt Paving Co., 175 id. 214; Prescott v. Le Conte, 83 App. Div. 482; affd., 178 N. Y. 585; City of Rochester v. Montgomery, 72 id. 65; Village of Port Jervis v. First Nat. Bank, 96 id. 550. See, also, Phœnix Bridge Co. v. Creem, 102 App. Div. 354; affd., 185 N. Y. 580; City of Rochester v. Campbell, supra, 411.) In the action by the plaintiff against the city, the foundation of the city’s right to deduct the amount for part of which the plaintiff is now suing was a breach of the plaintiff’s contract which was evidenced by the negligence resulting in the fire which caused the damages; and so here the action is predicated upon a breach of the defendant’s contract duty to the plaintiff which was imposed upon defendant in the same form in which the duty was imposed upon the plaintiff in favor of the city; and to the same extent; and as was held by this court in Prescott v. Le Conte (supra), it is not necessary that the liability shall be on the same contract in order that one may be liable over to another. The liability on the first cause of action being upon contract the cause of action could not be joined with the second which is for negligence.

It follows, therefore, that the interlocutory judgment should be reversed, with leave to plaintiff to sever the action (Code Civ. Proc. § 497) upon the payment of costs of the appeal and of the demurrer.

McLaughlin and Hotchkiss, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.

Ingraham, P. J. (dissenting):

I think it clear that if the complaint alleged that the injury both to the property belonging to the city and the property belonging to the plaintiff occurred at the same time and was caused by the same fire which resulted from the negligence of the defendant, the case would come within subdivision 9 of section 484 of the Code of Civil Procedure which authorizes the plaintiff to unite in the same complaint two or more causes of action “ upon claims arising out of the same transaction or transactions connected with the same subject of action.” The failure of the plaintiff, however, to allege that the damages for which it seeks to recover upon those two causes of action were caused by the same fire would require us to sustain the demurrer to the complaint if that was the only subdivision of section 484 of the Code of Civil Procedure which was applicable. But I think that these two causes of action may fairly be said to come within subdivision 6 of that section which provides that causes of action may be united where they are brought to recover “ for injuries to personal property.” The first cause of action is based upon the damage that was sustained by the city in consequence of the fire which was caused by the negligence of the defendant and which destroyed property of the city to the value of $27,488. It seems to me that this was clearly a cause of action based upon injury to personal property. The question as to the defendant’s liability to the plaintiff was based upon the fact that the plaintiff had a contract with the city to do work upon this bridge; that the plaintiff sublet a portion of this contract to the defendant; and that the defendant in the performance of that contract negligently allowed a fire to start which consumed said property to the value stated. When the city sought to recover the damage sustained from the plaintiff the defendant had notice of that suit with an opportunity of defending, and, therefore, the proof of the negligence which caused the fire and the amount of the recovery was binding upon the defendant. The allegations as to the contract and the city were necessary to make the defendant liable to the plaintiff instead of to the city whose property was destroyed; but as I view it that does not constitute an action on contract or based upon the violation of a contract, but the action is still for the negligence of the defendant which caused the destruction of the city’s property for which the plaintiff has been held liable and for which, under its contract, the defendant assumed liability. The cause of action is for the destruction of property of the city, and I see no reason why the city could not have sued the defendant to recover for the damage it sustained in consequence of the defendant’s negligence. The city, instead of suing the defendant, sued the plaintiff, and in consequence of the relation of the plaintiff to the work that both plaintiff and defendant were engaged in, plaintiff was held primarily liable. When the plaintiff seeks to recover on that liability against the defendant, but for the adjudication in the action by the city against plaintiff, plaintiff would have to prove the defendant’s negligence and the destruction of the city’s property in consequence thereof. There is no reason why both of these causes of action should not be tried together, and the liability of the defendant for the destruction of the city’s property and the destruction of the plaintiff’s property disposed of at the same time. It seems to me that to hold that one cause of action is based on contract and that the other is for an injury to personal property, thus necessitating two trials, where the whole claim can be disposed of at one trial,- is not required by any section of the Code of Oivil Procedure or any of the cases cited.

I, therefore, dissent from the reversal of this judgment.

Dowling, J., concurred.

Judgment reversed, with costs, with leave to plaintiff to sever action on payment of costs in this court and in the court below. Order to be settled on notice.  