
    The City of New York, Appellant, v. Henry Corn and Charles A. Cowen, Respondents.
    First Department,
    June 11, 1909.
    Negligence — injury by collapse of structure bridging vault in sidewalk — liability of owner to city on judgment against it — contribution — joint tort feasors—when parties not in pari delicto—contractor subletting work not liable.
    A judgment against a city for the death of a pedestrian caused by the collapse of a structure bridging a vault which was being built beneath the sidewalk based on a failure to inspect the structure is conclusive both against the contractor who was made party defendant and against the owner who was given notice to defend, in a subsequent action to charge them with the amount, of the judgment.
    Such judgment is conclusive not only as to the amount of damages, but also as to the existence of the defect and the freedom of the decedent from contributory negligence..
    In an action against the owner and the contractor to charge them with the amount of the judgment, the complaint should not be dismissed upon the theory that they were joint tort feasors with-the city so that the latter is not entitled to contribution. The city by issuing a permit for the construction of the vault and by failing to inspect the structure erected is not id pari delicto with the owner and contractor who negligently constructed the same.
    
      An owner who has failed to guard the public against the consequences of such interference with the highway cannot escape liability upon the ground that the work was done by the\:ontraCtor: • 1
    But a contractor who sub-let the actual Work of construction and merely obtained a permit to open the street as agent for the owner is hot liable to the city for the judgment obtained against it,
    Houghton, J., dissented in part, with opinion.
    Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 29th day of October, 1908, upon the dismissal .Of the complaint by direction of the court at the close, of the plaintiff’s case, on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 28th day of October, 1908, directing the dismissal of the complaint.
    
      Terence Farley, for the appellant.
    
      D-Cady Herrick, for the respondent.
   Scott, J.:

In this action the city of New York seeks to recover from -the defendants the amount which the city was obliged to pay to one William J. Parks,-as administrator,' etc., of Erwin- L. Coólidgej deceased, for the damages resulting, from the death of said Coolidge. The defendant Henry Corn was, in 1902, the owner of a lot'of land on the northwest, corner of Fifth avenue, and Eighteenth street in the borough of Manhattan, city of New York, upon which he proposed to erect a large building. His plans involved the construction Of a vault ,in front of the building for its entire length . between the building. and the curb line. The construction of this vault necessitated the excavation of the entire sidewalk between the building and the curb, line and the erection of a, temporary sidewalk or bridge for the Use of the public during the progress of the work. On May 2, 1902, Corn applied for and obtained from the eommissipner of public works a permit for the construction of the vault. The permit included'permission to erect and maintain, over the excavation for the vault, a bridge not exceeding five feet ' in height above the sidewalk and ten feet in width. Corn entered into a general contract with the defendant Cdwen for the erection of the building, including the construction of the vault and bridge, which latter work was in turn committed to a sub-contracting firm. The work was proceeded with and the bridge constructed. After it had been in use by the public for about two weeks, on the occasion of a public procession on Fifth avenue, a considerable number of persons congregated upon the bridge, which collapsed, and one Erwin L. Coolidge, who was upon it at the time, was precipitated into the excavation and killed. An action for damages for his death was brought by his administrator against the city of New York, Cowen, the general contractor, and Miller and Holme, the subcontractors. Due notice of the pendency of the action and an opportunity to appear-and defend were given to the owner and the present defendant Corn, of which, however, he omitted to avail himself. This action resulted in a judgment against the city of New York and the defendants Miller and Holme, the complaint being dismissed as against Cowen. On appeal the judgment was affirmed as to Miller and Holme, but re,versed as to the city of New York. (Coolidge v. City of New York, 99 App. Div. 175.) On a retrial of the action against the city the plaintiff recovered a judgr ment, which was affirmed on appeal. (Parks v. City of New York, 111 App. Div. 836; 187 N. Y. 555.) This judgment was paid and the city now seeks to recover over against the owner of the building and his general contractors.

At the trial the complaint was dismissed as against both defendants on the ground that they were joint tort feasors with the city, and that, as such, the city was not entitled to recover either contribution or indemnity. From the judgment entered upon,the dismissal and the order directing the dismissal of the complaint the plaintiff appeals. The city had proven the commencement of the former action, the notice to defendant Corn to come in and defend, the recovery and payment of the judgment. It also introduced, without objection, the charge of the justice who presided at the trial of the action against the city. The judgment roll in the former action was conclusive evidence against the defendants here (Cowen having been1 a party to that action and Corn having been properly vouched in) of the amount of the .damages, the existence of the defect or obstruction in the street, and that the injured party was himself free from negligence. (Mayor, etc., v. Brady, 151 N. Y. 611.) It appeared from the record in the former action and from the charge of the justice at the trial thereof that the vital question submitted to the jury was whether or not the bridge which fell had been'properly and carefully constructed; and, secondarily, whether, if it was improperly constructed, the city Was chargeable with notice thereof. The duty cast upon the city was not that of construction and maintenance, but that of vigilance and inspection. Cowen’s duty was the primary one of using proper care to protect the public from danger resulting from his interference with the highway, and this care 'involved the duty of providing a safe and proper bridge in the first place and of inspecting it from time to time, and if necessary repairing it, in order to protect the public. (Trustees of Canandaigua v. Foster, 156 N. Y. 354.) The result of the action against the city is conclusive evidence against Corn that he did not fulfill this duty, for the liability of the city in that action was necessarily predicated upon a determination that the bridge erected by Corn was not erected or maintained with reasonable care. If it had been, the city could not have been held liable because it had notice of -its actual condition. Hor can it be said that the fact that the city granted a permit for the construction of the bridge made it a joint tort feasor with the owner. “ Consent by a municipal corporation to a person, to do a lawful act merely permits it to be done in a careful, prudent.and lawful manner, and when it is performed in any other manner, and in jury to third persons ensues, the author of the injury is liable therefor. Upon receiving a license from the body authorized to grant it to dig in a street, the licensee impliedly agrees to perform the act in such a manner as to save the public from danger and the municipality from liability.” ( Village of Port Jervis v. First National Bank,, 96 N. Y. 550.) The relative duties of Corn and the city were, therefore, as follows : Corn was bound to exercise due- care to so construct and maintain the bridge. as to protect the public from injury; the city was under an obligation, not to Corn, but to the public, to use due diligence to see that Corn performed his duty, and the judgment against the city,by which Corn is concluded, established beyond contradiction that neither' Corn nor the city performed their respective duties. The rule- of law upon which the learned, court below dismissed the complaint has no application to a case like the present for the parties, although both wrongdoers towards the person injured, are not in pari delicto as between themselves. That the municipality may in a case like the present recover over against the primary wrongdoer has been so often held that it is impracticable within the reasonable limits of an opinion to cite all the authorities. • ,A few leading ones will suffice. (Washington Gas Co. v. District of Columbia, 161 U. S. 316; Chicago City v. Robbins, 61 id. [2 Black] 418; Trustees of Canandaigua v. Foster, supra.) The cases relied upon by respondent as seeming exceptions to the rule are not in point. For instance, in Trustees of Geneva v. Brush Electric Co. (50 Hun, 581) the plaintiff was denied a recovery over, because the injury resulted, not from any defect in the construction or maintenance of the electric light pole, but because of its improper location which had been assented to by the village authorities. Hence they were in pari delicto with the company. The rule of respondeat superior cannot be invoked by Corn, for his liability rests upon his failure to properly guard the public against the consequences of his interference with a public highway. From the consequences of this failure of duty he cannot shield himself behind his contractors. So far as concerns. the respondent Cowen we think that the complaint was rightly dismissed. He cannot be held either because he opened the street, for his own benefit, as he did not, nor because of the negligence in the construction of the bridge, which he did not construct. In applying for and obtaining a permit to. open the street he acted merely as agent for Corn, and he sublet the actual work of construction. As to the defendant Cowen the judgment and order must be affirmed, with costs. As to the defendant Corn the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, McLaughlin and Laughlin, JJ., concurred; Houghton, J., dissented as to defendant Corn.

Houghton, J.

(dissenting):

As I understand the rule governing reimbursement as between wrongdoers, the plaintiff failed to prove a cause of action against the defendant Corn. Of course, there can be no reimbursement where one of two joint wrongdoers is compelled to pay damages for the wrong inflicted by both.. Where, however, one negligently creates a situation which it becomes the duty of another to rectify, and thus as to third' persons .both become liable, and the latter is compelled tó pay damages, he may compel reimbursement from the one who instituted the wrong. This rule is based upon" the- fact that, although both aró liable as to third parties, as between themselves there is a primary and a secondary liability, and if the one secondarily liable is Compelled to pay, theone who instigated the wrong,must make him good.. If the one secondarily liable is sued and'he gives notice to the other to come in and defend, the judgment obtained, is conclusive against the one who had. an opportunity to defend and did not avail himself of it in three particulars, and in three particulars only. These are, the existence of such a defect or obstruction as made the person sued liable, and that the injured party was himself free from negligence, and that he suffered the amount of damages recovered. As I understand the law, it does not matter upon what theory the action by the injured party may be tried. The judgment obtained by him does not. prove primary or secondary liability as between the wrongdoers. If the wrongdoer who is compelled to pay seeks reimbursement from the primary wrongdoer, he must prove nZwtóe facts which show primary liability.

The case of Mayor, etc., v. Brady (151 N. Y. 611), -upon which the city relies in its várious appeals to this court and the Court of Appeals, illustrates and confirms the rule. That case first' came before.this court on an appeal by the defendants in 70 Hun, 250. The city had been compelled to pay a judgment obtained because of a defective sidewalk claimed to have been caused through the negligence of a contractor, and although the action was brought against the contractor’s sureties;, it was held that the negligence ¿f the contractor must be proved and that the judgment roll in the action against the city'did not prove the contractor’s negligence-, and hence the judgment was reversed. The case, was again tried and resulted in a judgment for the defendants, and on appeal by the plaintiff the. judgment was reversed because the trial court refused to receive evidence of the negligent acts of the contractor. (77 Hun, 241:) On a third trial, such evidence having been received,- the judgment in favor of the. plaintiff was affirmed because it was shown by proof aliunde the record of the former trial that the contractor had been guilty of negligence in obstructing the sidewalk (81 Hun, 441), and this judgment was affirmed by the Court of Appeals. Although that action was against the sureties upon the contractor’s bond the whole question of liability for reimbursement by a primary wrongdoer to a secondary wrongdoer, both of whom are liable as to third persons, but one entitled to reimbursement as against the other, was discussed, and it seems to me impossible to deduce from that case the rule that the primary wrongdoer is proven to be liable over to the secondary wrongdoer simply by proving the happening of the accident or by proving the judgment roll upon the former trial or the theory upon which that action was tried as illustrated by the judge’s charge alone.

In the present instance Parks, as administrator, recovered a judgment against the city, this plaintiff, on the ground that a defective bridge over an excavation in the sidewalk existed, of which the city had actual or constructive notice, and which it was either its duty to repair or close to travel, on the ground that the city did not attempt to prove that the bridge over the sidewalk was defectively constructed or that it had become out of repair. The bare happening of the accident did not prove Corn’s negligence any more than the bare happening of the accident would have proved the city’s negligence in the Parks' action. Nor did the charge of the judge explaining to the jury the theory upon which the plaintiff claimed to recover damages in the Parles case constitute substantive proof of Corn’s negligence. Indeed, the only proof on the present trial respecting the construction or condition of the bridge was that drawn out by the defendant from the plaintiff’s own witness to the effect that the bridge was properly braced and properly constructed.

The plaintiff having failed to prove a cause of action, the defendant was entitled to a nonsuit, and it makes no difference upon what theory the motion was granted.

The defendant Cowen having obtained a judgment of nonsuit in the original action, I concur in the affirmance of the judgment as to him, but for the reasons stated I think it should also be affirmed as to the defendant Corn.

As to defendant Cowen judgment and order affirmed, with costs. As to defendant Corn judgment and order reversed and new trial ordered, with costs to appellant to abide event.  