
    OCEANIC STEAM NAVIGATION CO. v. COMPANIA TRASATLANTICA ESPANOLA.
    
      N. Y. Court of Appeals, Second Division ;
    
    
      October, 1892.
    [Reversing 58 Super. Ct. 425.]
    1. Negligence ; leased premises s money paid.} A steamship company which rented a public wharf of the dock department of New York city, sublet it to another company. While in possession of the latter company, a door of the shed covering the wharf fell and. injured a stevedore engaged in unloading a vessel. The company renting the wharf from the city was compelled to pay a judgment recovered by the stevedore for the damages thus occasioned in an action brought in the- United States circuit court, of which the subletting company had notice.—Held, that the company paying the damages, if no negligence on its part had contributed to the accident, might maintain an action against the subletting company to recover the sums it had been compelled to pay in defending the action and satisfying the judgment, in like manner as a municipal corporation which has been compelled to pay for injuries to a traveller on a highway, caused by the negligent conduct of another, may recover against the person causing the injury.
    
    2. The same.] One who has been held legally liable for the personal neglect of another, is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not, or whether or not the person causing the injury owed the person held liable therefor, any special legal duty not to be negligent; the right to indemnity, in such case, stands upon ■the principle that every one is responsible for the consequence of his own negligence, and if another person has been compelled, by the judgment of a court having jurisdiction, to pay damages which ought to have been paid by the wrongdoer, they may be recovered from him.
    3 .Judgments and decrees; the United States Courts.] A judgment of a federal court in an action over which the federal court has concurrent jurisdiction with the State courts by reason of the residence of the parties, must be given the same force and effect in the courts of the State having concurrent jurisdiction as a judgment of a court of that State, even if the party recovering in the federal court could not have recovered, if he had brought his action in the State court, owing to the different views taken in the State and federal courts as to the legal rights and liabilities of the parties.
    
    
      4. The same.] In an action brought in a State court to recover what plaintiff had been compelled to pay in satisfying a judgment and defending an action in a court of the United States, Held, that the federal judgment, when offered in evidence in the. State court, in order to give it the same force and effect as a. judgment of a court of that State, must be regarded as conclusive as to the liability of the defendant to the plaintiff in the. action in which the judgment was rendered, although the State courts had concurrent jurisdiction with the federal court over such action, and the plaintiff in such action could not have •recovered if he had brought his action in the State court; but the liability of the defendant in the action in the State court to-indemnify plaintiff not having been determined in the action, in the federal court, such liability must be established by evidence outside the record of the action in the federal court
    Appeal by plaintiff from a judgment of the General Term of the Superior Court of New York city, overruling: exceptions heard in the first instance at General Term and dismissing complaint.
    The action was brought by the Oceanic Steam Navigation Company, Limited, against the Compañía Trasatlántica Española, to recover the amount of a judgment which plaintiff had been compelled to pay to one John Cleary, in action brought by him against this plaintiff in the United States circuit court, for personal injuries, received upon a wharf rented by plaintiff from the dock department of New York city, and which plaintiff had sublet to the defendant in ' this action; and also to recover the expenses incurred by plaintiff in defending Cleary’saction against it.
    The following is the statement of facts made by the court on the present appeal:
    
      “ The plaintiff is a British corporation, engaged in-running the White Star Line of steamships, and the defendant is a Spanish corporation. The department of docks in the city of New York, by an instrument in writing, for convenience called a “ lease,” “ granted” for a period which included the years 1886 and 1887, to the Oceanic Steam Navigation Company, “ all and singular the wharfage which may arise, accrue, or become due for the use and occupation by vessels of more than five tons burden, of all that certain wharf property, situated on the North River, in the city of New York, and known as ‘ Nos. 44 and 45,’ together with the bulkheads between them.” The instrument contains the following provisions : “ And the said parties of the first part hereby authorize the said party of the second part to enter upon the said premises, and take possession of the same, at the time herein designated, and for the purpose herein set forth, and to hold and enjoy the same, subject, however, to all ordinances of the mayor, aldermen and commonalty of the city of New York now in force, or which may hereafter be adopted by the said mayor, aldermen and commonalty of the city of New York, and all laws of the State of New York which are now in force or which may be hereafter enacted in any way appertaining or relating thereto . . . And the said party of the second part, for itself, its successors and assigns, agrees to erect on each of said piers Nos. 44 and 45, under the supervision of the said department of docks, and in conformity with the fire laws of the city of New York, and in accordance with plans to be filed in and approved by said department, suitable sheds for the protection of merchandise and freight. It seems that pier 45 was used by, and was generally sufficient for, the White Star Line, and that No. 44 was from time to time let for the use of other lines and vessels. Pier 44 was about 500 feet long, and extended from the shore westerly into the river. It was covered by a shed used for the protection of freight received for outgoing and discharged from incoming vessels. On the sides of the shed were several sliding double doors, each being about six feet wide and about eight feet high, so that when they were opened a vessel lying alongside could be laden or unladen from the pier. During the season of river navigation in 1886, pier 44 was used by the Troy Steamboat Company, but at the close of the season for .navigation on the Hudson river, in December of that year, the plaintiff sublet pier 44 for $250 per week to the defendant, until such date in the spring of 1887 as navigation on the Hudson river should be resumed. While in possession of this pier, the defendant permitted vessels owned by other persons to receive and discharge their cargoes thereat for such compensation as was agreed upon, not exceeding the rates fixed by statute. January 17, 1887, the Louis Baker was permitted by the defendant to receive its cargo at this pier. John Cleary was employed by the stevedore who was engaged in loading the vessel, and, while he was engaged in hoisting freight on board, a sliding door, which was about 200 feet out from the. shore, fell upon him, and broke his right leg. Subsequently Cleary brought an action in the United States circuit court against the Oceanic Steam Navigation Company, alleging that it was the lessee of pier 44, had possession and control thereof on the 17th of January, 1887, and that the door fell upon the plaintiff Cleary ‘ by reason of the carelessness and negligence of the defendant in failing and omitting to leave said door properly secured, without any fault or carelessness on the plaintiff’s part.’
    Negligence was denied in the.answer, and it was alleged that at the time of the accident the pier was in the possession of a sublessee. The Spanish corporation had notice of Cleary’s action, but did not defend it. It was defended, however, by the British corporation, but a judgment was recovered against it for $2,084.05 damages and costs. A motion for a new trial was made, but was denied, and, as the amount of the judgment was not sufficient to authorize an appeal to the supreme court of the United States, it was final and had to be paid. In conducting the defense, $784.12 was necessarily expended, and this action is brought to recover those two sums, with interest.”
    [The case of Cleary v. Oceanic Steam Nav. Co., upon motion for a new trial, is reported in 40 Fed. Rep. 908.]
    
      The Trial Court, in the present action, dismissed the •complaint, and directed the exceptions to be heard in the first instance at General Term on the ground that, under the authority of Swords v. Edgar (59 N. Y. 28), the plaintiff could only have been liable in Cleary’s action because it let the pier in a dangerous condition, and that, therefore, in the United States circuit court, Cleary could not have recovered against plaintiff, because of the negligence ■of the defendant in this action.
    
      The General Term did not decide the question raised by the trial court, but overruled the exceptions and dismissed the complaint upon the ground that the evidence .showed that at the time of the accident, the part of the ■pier where it occurred was not in the possession of the ■defendant company in this action, but of another steamship line. [Reported in 58 Super. Ct. 425.]
    The plaintiff appeals to this court.
    
      Everett P. Wheeler (Wheeler, Cortiss & Godkin, attorneys), for appellant.
    I. Defendant’s act caused the injury, and rendered it liable, not only to the party injured, but also mediately to pláintiff, which had been damnified by its neglect (citing Village of Port Jervis v. First National Bank, 96 N. Y. 550 ; City of Rochester v. Montgomery, 72 Id. 65 ; Mayor v. Dimmock, 16 State Rep. 913 ; Churchill v. Holt, 127 Mass. 165 ; Chicago City v. Robbins, 2 Black. 418; S. C., 4 Wallace, 657; Seneca Falls v. Zalinski, 8 Hun, 571).
    II. The defendant, being the licensee or grantee of the pier from the plaintiff, was bound to keep it in such condition as should be reasonably safe for the use of persons-lawfully there (citing Radway v. Briggs, 37 N. Y. 256; City of Brooklyn v. Brooklyn City R. R., 47 Id. 475 ; Port Jervis v. First National Bank, 96 Id. 550; Clancy v. Byrnes, 56 Id. 129).
    III. The trial court had no right to infer that the judgment in the federal court was recovered upon the ground that the pier had been let with nuisance on it.. The actual point adjudicated could be shown by evidence dehors the record (citing Adams v. Conover, 87 N. Y. 422 ; White v. Chase, 128 Mass. 158; Washington Steam Packet Co. v. Sickles, 24 How. U. S. 333).
    IV. The federal decision was based upon the authority of Radway v. Briggs (37 N. Y. 256), in which the distinction was taken between wharf property and ordinary real estate, and the rule laid down that the lessee of a pier is. not entitled to exclusive possession. A public pier is part of a public highway, and the only right which the lessee takes is the right to collect wharfage (citing Campbell v. Portland Sugar Co., 62 Me. 552).
    V. Where the parties are not equally criminal, the-principal delinquent may be held responsible to the co-delinquent for damages paid by reason of the offense in which both were concerned in different degrees as perpetrators (citing City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475 ; City of Lowell v. Boston and Lowell R. R. Co., 23 Pick. 24; City of Lowell v. Short, 4 Cush. 275 Grand Trunk Ry. Co. v. Latham, 63 Me. 177).
    VI. The law implied a contract to reimburse plaintiff (citing 2 Greenl. Evidence, § 114.; Wells v. Porter, 7 Wend. 119; Lageman v. Kloppenburg, 2 E. D. Smith, 126; Grissell v. Robinson, 3 Bing. N. C. 10; Hale v. Huse, 10 Gray, 99 ; Nichols v. Bucknam, 117 Mass. 488 ; Dodge v. Zimmer, 110 N. Y. 43).
    VII. The duty to indemnify arises independently of any covenant or contract on defendant’s part to do repairs 
      but there was a contract since, independently of express covenant, a tenant is always bound to make ordinary repairs (citing Suydam v. Jackson, 54 N. Y. 450 ; 2 Wood on Landlord and Tenant, p. 786, § 365 ; City of Rochester v. Campbell, 55 Hun, 138; Robinson v. Chamberlain, 34 N. Y. 389; Conrad v. Village of Ithaca, 16 Id. 158).
    VIII. The amount of plaintiff’s recovery was liquidated by the judgment in the federal court (citing Farmers’ & Mechanics’ Bank v. Erie R. Co., 72 N. Y. 188 ; Green v. New River Co., 4 Term Rep. 589 ; Second National Bank v. Ocean Nat. Bank, 11 Blatchf. 392).
    IX. Plaintiff could recover in addition to the amount of the judgment the incidental expenses in defending the action (citing City of Rochester v. Campbell, 123 N. Y. 405 ; City of Brooklyn v. Brooklyn R. R. Co., 47 Id. 476; Thompson on Neg. 791).
    
      James S. Stearns (Stearns & Curtis, attorneys), for respondent.
    I. Plaintiff can not recover because his negligence contributed to the accident (citing Churchill v. Holt, 127 Mass. 165 ; City of Buffalo v. Holloway, 3 Seld. 493 ; Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475 ; Village of Port Jervis v. First Nat. Bank, 96 Id. 350; City of Rochester v. Montgomery, 72 Id. 65).
    II. If a landlord leases the property with the nuisance •existing thereon, and the nuisance is continued by the tenant, they are both equally wrongdoers, and the courts will not interfere between them (citing Ahern v. Steele, 115 N. Y. 203 ; Edwards v. N. Y. & H. R. R. Co., 98 Id. 245 ; Swords v. Edgar, 59 Id. 28).
    
      
       Note on liabilities for injuries to person, 24 Abb. N. C. 181. For. several cases where the principle stated in the text has been applied, see 20 Abb. N. C. 15.
    
    
      
       The plaintiff who sues for money he has paid which another ought to have paid, may, when the payment was compelled by a judgment in an action against him of which the present defendant had notice and opportunity to defend, plead that judgment as an estoppel on the questions of fact thereby determined. Barney v. Dewey, 13 Johns. 224. This case, of unquestioned authority, establishes a rule of convenience and justice, and is a good illustration of the principle upon which a plaintiff may plead an avoidance of an anticipated defense. See note in 25 Abb. N. C. 
        120. As to what facts the estoppel would extend to, in such an action as that in the text, see 2 Dill. Mun. C. § 1035 ; and 5 South. L. Rev. 120.
    
   FOLLETT, Ch. J.

[after stating the facts]—Had Clear■ey’s judgment been recovered in a court in this State, and affirmed by the court of last resort, the right of the Oceanic Steam Navigation Company (assuming that its negligence did not contribute to the accident) to recover the sums it had been compelled to pay by the judgment, would hardly be questioned. There are many-reported cases of recoveries of sums which persons have been compelled by judgments to pay for the neglects of others, and the general rule is that there may be a recovery had in such cases, unless the parties were alike in the wrong which caused the damages (Rochester v. Montgomery, 72 N. Y. 65 ; Village of Port Jervis v. First Nat. Bank, 96 Id. 550; Chicago City v. Robbins, 2 Black. 418; 4 Wall. 657; City of Lowell v. Boston & Lowell Railroad Corp., 23 Pick. 24). The foregoing cases were brought by cities to recover sums which they had been compelled to pay to travelers on the streets for injuries caused.by the negligent conduct of the defendants. The liability of the defendants to indemnify the municipalities is not placed, in the cases above cited,, on the ground that persons causing injuries in highways, owe a higher or different duty to the public or to a city than to individuals, nor upon the ground that the liability over is peculiar to neglects to use due care in public-streets. The same duty to exercise care for the safety 'of the public, and all having occasion to use piers, would seem to be due from those in control of public piers as-from those using a public street, for both are public ways (Radway v. Briggs, 37 N. Y. 256 ; Taylor v. Atlantic Mut. Insurance Co., Id. 275 ; In re New York, C. & H. R. R. Co., 77 N. Y. 257: Taylor v. Mayor, 4 E. D. Smith, 559 ; Mayor v. Rice, Id. 604; People v. Railroad Co., 117 N. Y. 150-156; People v. Mallory, 46 How. Pr. 281-283; 2 Thomp. & C. 76 ; People v. Macy, 62 How. Pr. 65 ; Gluck v. Ridgewood Ice Co., 9 N. Y. Supp. 254 ; 31 State Rep. 99).

In Gray v. Boston Gaslight Co. (114 Mass. 149) the defendant fastened a telegraph wire to the plaintiff’s chimney,, without having obtained permission. The weight of the wire pulled the chimney into the street, injuring a traveler, who began an action to recover his damages against the owner of the building. Notice of the suit was given to the gaslight company, but it refused to defend. Subsequently, Gray, the owner of the building, paid the traveler $335 for his damages and in settlement of the action, and then sued the gaslight company to recover that sum and the expenses of the litigation. It was held, the sum paid in settlement having been found to be reasonable, that it and the expenses of the action could be recovered. The court, in discussing the question, said: “ When two parties, acting together, commit an illegal or wrongful act, the party who is held responsible for the act cannot have indemnity or contribution from the other, because both are equally culpable, or particeps criminis, and the damage results from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability, and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such cases the parties are not in pari delicto as to each other, though, as to third persons, either may be held liable.”

In Churchill v. Holt (127 Mass. 165) a judgment had been recovered against the occupant of a building for damages sustained by a traveler who had fallen through a hatchway in a sidewalk. The owner paid the judgment, and sought to recover the amount of it from Holt, alleging that his servant, in the course of his business, opened and negligently left the hatchway uncovered, and so caused the accident. On the trial the evidence to prove this allegation was rejected, but it was held on review that it was competent. It was said : The rule that one of two joint feasors cannot maintain an action against the other for indemnity or contribution, does not apply to a case when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability. In such case the parties are not in pari delicto as to each other, though, as to third persons, either may be held liable.”

In that case, as in the one at bar, the defendant took the position that the judgment in favor of the traveler against the owner was conclusive against his right to maintain the action. This position was not sustained, and in discussing the question the court said: Under the pleadings in that 'suit the judgment may have been rendered upon the ground that the plaintiffs were liable as occupants of the building, without any regard to the question whether they or a stranger to the suit removed the cover, or negligently left it unguarded. It conclusively showed that they were guilty of negligence in law as to the person injured, but it does not show that they, were particeps criminis with the defendants, and is not inconsistent with their right to maintain this action.” This case was retried, and the jury found that the parties were joint tort feasors, and the plaintiffs were defeated (131 Mass. 67). The principle was again asserted in Simpson v. Mercer (144 Mass. 413) and Old Colony Railroad v. Slavens (148 Id. 363).

In the City of Brooklyn v. Railroad Co. (47 N. Y. 475, 487), the rule of liability was thus stated : “ When the parties are not equally criminal, the principal delinquent" may be held responsible to a co-delinquent for damage paid by reason of the offense in which both were concerned in different degrees as perpetrators.” This was said in an action founded upon a covenant to keep the street upon which the accident occurred in repair, but reference was made to Lowell v. Railroad Corp., supra, a leading case, laying down the rule that, where one has been compelled by a judgment to pay the damages occasioned.by another’s negligence, the amount paid may be recovered against the principal wrongdoer, though contractual relations do not exist between the parties to either action. See, also, Bisk. Non-Cont. Law, § 535. When damages have been recovered by a judgment against a master for injuries sustained by the servant's negligence, the master not having contributed, the sum so paid by the latter may be recovered from the servant (Smith v. Foran, 43 Conr. 244; Grand Trunk Ry. Co. v. Latham, 63 Me. 177; Green v. River Co., 4 Term R. 589; Pritchard v. Hitchcock, 6 Man. & G. 154 ; Smith, Mast. & Serv. 134 ; 2 Thomp. Neg. 1061 ; Whart. Neg. § 246).

Sufficient cases have been cited to show that one who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not, and that the right to indemnity does not depend upon the fact that the defendant owed the plaintiff a .special or particular legal duty not to be negligent. The right to indemnity stands upon the principle that every -one is responsible for the consequences of his own negligence, and if another person has been compelled (by the judgment of a court having jurisdiction) to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him.

For the purpose of this discussion it will be assumed that, had Cleary brought his action against the Oceanic .Steam Navigation Company in the courts of this State he would have failed. This brings us to the question of the effect of the judgment of the circuit court of the United States. These companies are foreign corporations, and Cleary was a resident citizen of this State, which gave the circuit court jurisdiction of the action (Const. U. S. art. 3, § 2). The courts of this State also had jurisdiction to determine the controversy between Cleary and the Oceanic Steam Navigation Company. In other words, the circuit court of the United States and the courts of this State had concurrent jurisdiction to determine whether this corporation was liable to Cleary by reason of the accident, and the adjudication of either court would have been conclusive upon the other. The judgment of the circuit court of the United States must be given the same force and effect by the courts of this State as we give to the judgments of our own courts (Crescent City Live-Stock Co. v. Butchers’ Union, 120 U. S. 141; 7 Sup. Ct. Rep. 472 ; 2 Black, Judgm. § 938).

In the case cited the court said: “ And their [the judges of the circuit court] judgment or decree when rendered is binding and perfect between the parties until reversed, without regard to any adverse opinion or judgment of any other court of merely concurrent jurisdiction. Its integrity, its validity, and its effect are complete in all respects between all parties in every suit and in every forum where it is legitimately produced as the foundation of an action, or of a defense, either by.plea orín proof, as it would be in any other circumstances. While it remains in force it determines the rights of the parties between themselves, and may be carried into-execution in due course of law to its full extent, furnishing a complete protection to all who act in compliance with its mandate.” What effect would the courts of this-State give to a judgment rendered by one of them for damages arising from negligence, in an action brought to recover the amount paid pursuant to the judgment ? The defendant in the action would not be bound by the judg.ment as a party, for he was not a defendant in the first action ; but, had he been joined as a defendant, and both had been adjudged liable, the judgment would not necessarily have determined, as between them, whether either was or was not primarily liable, because that question could not have been litigated in the first action ; at least, it could not have been without the consent of all the parties to it, and of the trial court, and then only through, the aid of a special verdict or of a special finding.

The judgment in an action first brought is proof in the second action of the liability, and the amount thereof of the defendant in the first action to the plaintiff therein.. The liability of the defendant in the second action to the defendant in the first (the plaintiff in the second) must be-established by evidence outside of the record of the first action. Such would have been the- conceded effect of Cleary’s judgment had it been recovered in a court of this State. In the case at bar the judgment of the circuit court is not conclusive evidence of the liability of the defendant to the plaintiff, nor would it have been had both been defendants in that judgment. But until it is impeached as fraudulent, or as rendered by a court without jurisdiction, it is proof that the plaintiff in this action was legally liable to Cleary for the damages occasioned by the accident, and of the amount of that liability. When we give the judgment of the circuit court that effect, we give it the same force and effect as we give to a judgment of our own courts. When the plaintiff had shown that he gave due notice of the pendency of the first action, that he had contested it so far as he could,, and had finally paid the judgment rendered, he had shown the amount of the damages which he had sustained, aside from the expenses incurred in its defense.

Whether as between these litigants, the defendant is primarily liable for the damages occasioned by the injury to Cleary, must be determined by evidence outside of the record in the United States circuit court. The record of the first action, when put in evidence in the second action by a plaintiff, might disclose a state of facts showing that he was solely liable for the injury, or that the defendant in the second action was not liable over to him ; but such facts do not appear from the record in Cleary’s Case, and the report of the reasons for the denial of the motion for a new trial shows that the circuit court did not rest its judgment on the theory that such facts were established.

The court said: “ There was sufficient in the evidence to warrant the jury in finding that the door or its fastenings was in a condition of disrepair for a period long enough to justify the imputation of negligence. The fact, which was quite clearly shown, that the door and fastenings were in good repair when the defendant assigned to the Spanish American Company the right to collect wharfage and cranage at. the pier, did not relieve the defendant from its duty to keep the wharf in safe condition” (40 Fed. Rep. 908). Whether the courts of a State have given the same force and effect to a judgment of ,a federal court that they do to that of their own, is a -question which may be reviewed by the supreme court of the United States (Crescent City Live-Stock Co. v. Butchers’ Union, supra).

The fact that certain classes of litigants in the United States are subject to two judicial systems, the courts of -which sometimes differ in their views of the rights and liabilities of persons, without having, in most cases, .an ultimate arbiter to decide as between them, is at least .a peculiarity arising from our dual form of government, which will become more and more apparent as time goes -on and experience is acquired.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

All the judges concurred.  