
    Ella Sobel et al., Respondents, v. City of New York et al., Appellants-Respondents; W. J. Fitzgerald Paving Co., Inc., et al., Appellants, et al., Defendants.
    Argued January 3, 1961;
    decided February 23, 1961.
    
      
      George J. Conway for Slattery Bock Corporation, appellant.
    I. Plaintiff’s accident occurred after Slattery had properly back-filled the trench and fully completed its work under its contract and after its responsibility for the work had finished. (Kalas 
      v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, 240 N. Y. 633; Probst v. New York Cent. R. R. Co., 237 App. Div. 562; Bergen v. Fortis Contr. Co., 270 App. Div. 1036, 297 N. Y. 856.) II. The court below erred in reversing the decision of the trial court dismissing the cross complaints of the city and Con Tel against Slattery. (Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Wrigley v. City of Watervliet, 165 App. Div. 740; Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 11 A D 2d 220; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204; Doyle v. Union Ry. Co., 276 N. Y. 453; Burke v. City of New York, 2 N Y 2d 90; Inman v. Binghamton Housing Auth., 3 N Y 2d 137; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723; Salamy v. New York Cent. System, 1 A D 2d 27.) III. Plaintiff was guilty of contributory negligence as a matter of law. The court’s refusal to charge Slattery’s request was error. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Townes v. Park Motor Sales, 7 A D 2d 109.)
    
      James J. McLoughlin and Anthony J. De Cicco for W. J. Fitzgerald Paving Co., Inc., appellant.
    To permit recovery over by the Consolidated Telegraph and Electrical Subway Co. in this case would place a premium upon a public utility’s neglect of and disregard for the public’s safety upon the highway and is against public policy. (Boll v. Sharp 3 Dohme, 200 Misc. 1104, 281 App. Div. 568, 307 N. Y. 646; Grasioso v. City of New York, 11 Mise 2d 301; Buping v. Great Atlantic 3 Pacific Tea Co., 283 App. Div. 204; Falk v. Crystal Hall, 200 Mise. 979, 279 App. Div. 1071, 304 N. Y. 987; Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 11 A D 2d 220; Harrington v. 615 West Corp., 2 1ST Y 2d 476; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; Wischnie v. Dorsch, 296 N. Y. 256; Burke v. City of New York, 2 N Y 2d 90; Schwarts v. Merola Bros. Constr. Corp., 290 N. Y. 145; Walters v. Bao Elec. Equip. Co., 289 N. Y. 57; Semanchuck v. Fifth Ave. 3 37th St. Corp., 290 N. Y. 412.)
    
      Leonard Hemley, John J. Kennelly, Bobert G. Shelter and Morris L. Wolf for Consolidated Telegraph and Electrical Subway Co., appellant-respondent.
    I. Defendants’ motion to dismiss should have been granted, since the existence of the irregularity was not the proximate cause of the accident. (Loughran v. City of New York, 298 N. Y. 320; Dowd v. City of 
      
      Buffalo, 263 App. Div. 932, 290 N. Y. 895; Lynch v. City of Beacon, 269 App. Div. 757, 295 N. Y. 872; Boyne v. City of Buffalo, 269 N. Y. 657; Lobsenz v. Rubinstein, 258 App. Div. 164, 283 N. Y. 600.) II. The reversal by the Appellate Division of the trial court’s dismissal of the cross complaint by the city against Con Tel was error. (Burke v. City of New York, 2 N Y 2d 90; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Schnaier v. Bradley Contr. Co., 181 App. Div. 538.) III. There is no express agreement of indemnity upon which the city can recover over against Con Tel. (Doyle v. Union Ry. Co., 276 N. Y. 453; Miele v. City of New York, 270 App. Div. 122; Schnaier v. Bradley Contr. Co., 181 App. Div. 538.) IV. The city is not entitled to implied indemnification on principles of equity. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447.) V. If the city, Con Tel and the subcontractors were all guilty of active negligence as the court below found, the ultimate responsibility would rest on the subcontractors. (Burke v. City of New York, 2 N Y 2d 90.) VI. Respondent Con Tel is entitled to indemnification from Fitzgerald for any liability that Con Tel may have to plaintiffs both under the agreement and under common-law principle. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Burke v. City of New York, 2 N Y 2d 90; Mirsky v. Seaich Realty Co., 256 App. Div. 658; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723.) VII. The Appellate Division correctly found that there was no waiver of the contractual provisions. VIII. The period of Slattery’s responsibility is a factual issue which was properly resolved below. IX. Respondent Con Tel is entitled both under the agreement and under common-law principles to indemnification from Slattery for any liability that Con Tel may have to plaintiffs. (Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Burke v. City of New York, 2 N Y 2d 90; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723.)
    
      Charles H. Tenney, Coryoration Counsel (Fred Iscol and Seymour B. Quel of counsel), for City of New York, appellant-respondent.
    I. The Appellate Division properly granted judgment to the city on its cross complaint against defendants Consolidated Telegraph and Slattery Rock, since the city was held liable to plaintiffs only because of its failure to correct a condition brought about by the affirmative active negligence of those defendants. (Doyle v. Union Ry. Co., 276 N. Y. 453; Rufo v. Orlando, 309 N. Y. 345; Bressingham v. City of New York, 286 App. Div. 811, 309 N. Y. 895; Coffey v. Flower City Carting & Excavating Co., 2 A D 2d 191, 2 N Y 2d 898; Boylhart v. Di Marco & Reimann, 270 N. Y. 217; Wrigley v. City of Watervliet, 165 App. Div. 740; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Wischnie v. Dorsch, 296 N. Y. 257; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Runkel v. Homelsky, 286 App. Div. 1101, 3 N Y 2d 857; Lobello v. City of New York, 268 App. Div. 880, 294 N. Y. 816; Toth v. Kennedy & Smith, 259 App. Div. 855, 285 N. Y. 579; Anderson v. Liberty Fast Frgt. Co., 285 App. Div. 44; Fletcher v. County of Broome, 286 App. Div. 286; Di Prizzio v. Raymond Concrete Pile Co., 1 A D 2d 723; Trustees of Vil. of Geneva v. Brush Elec. Co., 50 Hun 581.) II. The terms of the permit issued to Consolidated Telegraph and under which Slattery Bock was enabled to excavate the public street obligated them to indemnify the city. (Doyle v. Union Ry. Co., 276 N. Y. 453; Reich v. City of New York, 6 A D 2d 556.) III. The Administrative Code likewise imposes upon those defendants a duty to save the city harmless from loss occasioned by their work. (Burke v. City of New York, 2 N Y 2d 90; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; Schuster v. Forty-Second St., M. & St. N. Ave. Ry. Co., 192 N. Y. 403; City of Rochester v. Campbell, 123 N. Y. 405.)
    
      Moe Levine and Max Shamis for respondents.
    I. Slattery, as well as the city and Con Tel, was properly held liable to plaintiffs for negligently causing the injuries sustained by Ella Sobel. (Brown v. Welsbach Corp., 301 N. Y. 202; Weis v. Long Island R. R. Co., 262 N. Y. 352; Kalas v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, 240 N. Y. 633; Probst v. New York Cent. R. R. Co., 237 App. Div. 562; Bergen v. Fortis Contr. Co., 270 App. Div. 1036, 297 N. Y. 856; Coleman v. Guidone & Son, 192 App. Div. 120; Bressingham v. City of New York, 286 App. Div. 811, 309 N. Y. 895; Boylhart v. Di Marco d Reimann, 270 N. Y. 217.) II. The issues of contributory negligence and proximate cause were for the jury. (Loughran v. City of New York, 298 N. Y. 320; Dowd v. City of Buffalo, 263 App. Div. 932, 290 N. Y. 895; Lynch v. City of Beacon, 269 App. Div. 757, 295 N. Y. 872; Boyne v. City of Buffalo, 269 N. Y. 657; Lobsenz v. 
      Rubinstein, 258 App. Div. 164, 283 N. Y. 600; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Nolan v. King, 97 N. Y. 565; Kelly v. Doody, 116 N. Y. 575; Weston v. City of Troy, 139 N. Y. 281; Whalen v. Citizens’ Gas Light Co., 151 N. Y. 70; Friedlander v. Eagle Dry Goods Corp., 267 App. Div. 701; Chisholm v. State of New York, 141 N. Y. 246; Morrell v. Peck, 88 N. Y. 398; Minick v. City of Troy, 83 N. Y. 514; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; Shook v. City of Cohoes, 108 N. Y. 648; Bullock v. Mayor, 99 N. Y. 654; McEvoy v. City of New York, 266 App. Div. 445; Bassett v. Fish, 75 N. Y. 303; Palmer v. Dearing, 93 N. Y. 7.)
   Van Voorhis, J.

The injured plaintiff tripped on a cobblestone in the pavement of the crosswalk on Third Avenue at the intersection of East Tremont Avenue in The Bronx. It had got out of place after the crosswalk had been temporarily repaired following an excavation job but before the paving stones had been cemented in final position. The record contains evidence upholding plaintiffs’ recoveries against the City of New York and the general contractor, Consolidated Telegraph and Electrical Subway Co. (described as Con Tel), and the judgment should likewise be affirmed insofar as it directs indemnification of the city by Con Tel. The city and Con Tel are not in pari delicto so as to prevent the application of the active and passive negligence rule (Trustees of Village of Geneva v. Brush Elec. Co., 50 Hun 581; Runkel v. Homelsky, 286 App. Div. 1101, affd. 3 N Y 2d 857; Lobello v. City of New York, 268 App. Div. 880, affd. 294 N. Y. 816; Anderson v. Liberty Fast Freight Co., 285 App. Div. 44; Fletcher v. County of Broome, 286 App. Div. 286). Having obtained the permit from the city for excavation in a public street, Con Tel—although it performed none of the work itself—remained subject to a nondelegable duty to plaintiffs until the pavement was finally restored (Administrative Code of City of New York, § 82d-3.0; Doyle v. Union Ry. Co., 276 N. Y. 453). It subcontracted with W. J. Fitzgerald Paving Co., Inc. (described as Fitzgerald) to replace the pavement in permanent condition. That subcontract contains provisions which amount to express indemnification of Con Tel (apart from the mere promise to pave) for damages occurring after the time when Fitzgerald’s responsibility began. The portion of the judgment is, therefore, affirmed requiring indemnification by Fitzgerald of Con Tel. The defendant Slattery Bock Corporation (described as Slattery) has not been proved liable to plaintiffs or any of its codefendants.

The crosswalk where the injured plaintiff fell had been excavated for underground electric power construction. Slattery subcontracted to do the excavation, backfilling and to repave temporarily (without cementing the paving stones), which meant leaving the job in condition for public use awaiting the permanent paving which was subcontracted tó Fitzgerald. Fitzg’erald’s work consisted in cementing the cobblestones together and putting them into final condition for street purposes. Nothing had been done by Fitzgerald at the time of the accident, although Fitzgerald had been notified two weeks previously by Con Tel to proceed with the work under the provisions of its subcontract. Slattery had completed the refill and had restored the cobblestones to position providing temporary pavement. These paving stones were uncemented and loose when Slattery finished, which was a necessary incident of the work, but there is no evidence that the paving stone on which the injured plaintiff fell was left sticking up in the air, which she testified was the cause of her fall, when Slattery completed its part of the work. Slattery is liable to plaintiffs if and only if it was under a continuing duty to maintain the pavement in its temporary state at the time of the accident after its subcontract had been fully performed. Slattery was not the permit holder; it was not the general contractor, and was chargeable with responsibility for only a part of the total project. Slattery must be exonerated from liability if, under the contractual arrangements between these parties, all duties on its part had been fulfilled at the time of the accident (Probst v. New York Cent. R. R. Co., 237 App. Div. 562; Kalas v. Consolidated Tel. & Elec. Subway Co., 211 App. Div. 280, affd. 240 N. Y. 633). Slattery was to maintain the trenches and openings after they had been backfilled and surfaced with temporary pavement under the terms of its subcontract, until 10 days after Slattery had notified Con Tel in writing that the condition of the trench was satisfactory for the restoration of the permanent pavement. Slattery completed the temporary pavement April 20, 1956. Ten days later, on May 1, 1956, Con Tel sent an order to Fitzgerald to proceed with the permanent paving as provided by Fitzgerald’s subcontract. Inasmuch as Fitzgerald could not install the permanent pavement until after Slattery had finished, Con Tel thus recognized that Slattery’s work had been completed. It is evident that Con Tel was not waiting for any written notice from Slattery that is now claimed to have been necessary in order to release Slattery from further responsibility for maintenance. Con Tel could not have notified Fitzgerald to proceed, as it did on May 1, without recognizing that Slattery’s part in the work had been finished. Its action shows that it knew that Slattery was through—i.e., in the language of the contract, that the condition of the trench was satisfactory for the restoration of the permanent pavement and had been for 10 days. The mere technical omission to serve the notice was immaterial under these circumstances.

The judgment appealed from should be modified so as to dismiss the complaint and the cross claims against appellant Slattery Rock Corporation, with costs in all courts, and, as so modified, affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Burke and Foster concur.

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, with one bill of costs in all courts in favor of appellant Slattery Rock Corporation against respondents Sobel and appellants-respondents, the City of New York and Consolidated Telegraph and Electrical Subway Co.  