
    The Mayor, etc., of the City of New York, Resp’t, v. John Brady et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Negligence—Indemnity.
    Where a _ city, after having paid a judgment recovered against it for personal injuries caused by falling over a pipe left in a street where work was being done by a contractor, sues for indemnity on the bond of such contractor, it must be affirmatively shown that the contractor was primarily liable for the damage, unless some provision in the contract renders such proof unnecessary or the issue was tried in the first action.
    U. Same—Evidence.
    Where indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, is primarily liable, the judgment is evidence in the action brought ■ for indemnity that the plaintiff in the second action was liable for the damages; and, when notice has been given to defend, of the amount of the damages arising from the injury; but it does not establish which of the wrongdoers is primarily liable.
    3. Same—Contract with municipal cokpobation.
    A contract between a city and contractors provided that the latter would indemnify and save harmless the city from all suits and actions of every name and description brought against it, and all damages to which it might be put by reason of injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or any act or omission on the part of the contractors. Held, that by the terms of the contract the contractors and their sureties were not liable simply because a judgment had been obtained against the city.
    4. Same.
    In such case, the fact that the city made payments to the contractors after the claim for injuries was presented is no defense to the action on the contractors’ bond, where the contract with the city provided that so much of the money due the contractors as should be considered necessary by the city might be retained at its option until all suits or claims for damages should be settled.
    Appeal from a judgment entered on a verdict directed by the court.
    August 31, 1883, Joseph D. Nutt and Patrick Kearns, who were partners under the firm name of Nutt & Kearns, entered into a contract- in writing with the mayor, aldermen and commonalty of the city of New York, whereby they agreed, in consideration of certain payments therein provided for, to construct a sewer in Ninth avenue, between Eighty-first and Eighty-third streets in the city of New York, and to complete the same in a good and substantial manner. The contract contained the following provision : “ That during the performance of the said work he (they) will place proper guards upon and around the same for the prevention of accident, and at night will put up and keep suitable and sufficient lights, and that he (they) will indemnify and save harmless the parties of the first part from all suits and actions of every name and description brought against them, and all costs and damages to which they may be put, by reason of injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the same, or from improper materials used in its construction, or by or on account of any act or omission by the said party of the second part or his (their) agents.” Simultaneously with the execution of said contract a joint and several bond was entered into by said Nutt & Kearns, John Brady and William Hollweg, whereby they bound themselves in the sum of $5,000, the condition of the obligation being that Nutt & Kearns “ shall well and truly, and in good, sufficient, and workmanlike manner, perform the work mentioned in the aforesaid contract, and complete the same in accordance with the terms and provisions therein stipulated, and in each and every respect comply with the condition therein contained, then this obligation to be void; otherwise to remain in full force and virtue.”
    On the 13th of November, 1883, Augustus W. Cruikshank was injured by falling over an unguarded pipe left across the west sidewalk on Ninth avenue. December 7, 1883, he filed his claim with the city for the damages sustained, which was not allowed. In May, 1884, he began an action in the supreme court against the mayor, aldermen and commonalty of the city of New York, said Joseph D. Nutt and Patrick Kearns. He alleged in his complaint, among other things, as follows: “(4) That during the progress of the construction of said sewer or sewers in the said portion of Ninth avenue, and in the month of November, 1883, the defendants, Joseph D. Nutt and Patrick Kearns, and their servants, having unlawfully, carelessly and negligently placed and extended a certain pipe over and across the sidewalk between Eighty-first and Eighty-second streets, on the westerly side of Ninth avenue, which said avenue is a public highway, did negligently and carelessly suffer said pipe to remain extended and across said sidewalk uncovered and exposed, without guarding the same, and without placing any light or signal near thereto to indicate danger, thereby creating and continuinga public nuisance, and rendering said sidewalk insecure and dangerous to citizens and travelers. (5) That the defendant, the mayor, aldermen and commonalty of the city of New York, and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid. (6) That on the 13th day of November, 1883, the plaintiff, while lawfully and carefully passing along said westerly side of Ninth avenue, between Eighty-first and Eighty-second streets, on the sidewalk, entirely unaware and unsuspicious, of danger, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect and default of the defendants, stumbled against said pipe, and fell over the same.” The defendants filed separate answers, denying any liability. On the 6th of June, 1885, notice was given by the corporation counsel to Nutt & Kearns and to William Hollweg and John Brady of the pend-ency of the action, the purpose for which it was brought, that damages were claimed, and they were asked to defend the action at their own expense. The defendants Hollweg and Brady paid no attention to the notice, and refused to appear and defend the action. On the 6th of October, 1885, the action was brought to trial, and resulted in a verdict in favor of the plaintiff for $4,500 damages, and on the same day a judgment was ordered for $4,884.94 damages and costs, which the city paid to the plaintiff on the 23d of December, 1885, together with interest, amounting ing in all to $4,937.05. Afterwards this action was begun by the city to recover from these defendants the amount which it had been compelled to pay.
    On the trial the plaintiff introduced in evidence the contract, the bond, and the judgment roll, proved the payment of the judgment and the amount expended in contesting the former action, and rested. Thereupon the defendants moved for a dismissal of the complaint on the ground that the plaintiff had not shown that the damages recovered by the judgment were caused by the negligence of the contractors, for whom the defendants were sureties. This motion was denied, and an exception was taken. The defendants then proved that the city paid on the contract the following sums at the following dates: December 1, 1883, $1,120; January 30, 1884, $1,120; March 31, 1884, $1,059.80; May 12, 1884, $1,050; June 10, 1884, $1,120; August 28, 1884, $2,218.92; May 2, 1885, $334.90; total, $7,918.62. The defendants also showed that August 26, 1884, the contractors acknowledged full payment of all their claims arising out of the contract, and executed a general release of all demands against the city. The defendants then proved that the action brought by Cruikshank was not noticed for trial as against the contractors, and that in 1888, on their motion, that action was dismissed for the want of prosecution. The defendants introduced §§ 12, 14 and 17 of page 7 of the revised ordinances of the city, and offered to prove that soon after the contract was closed the contractors became and remained insolvent, which evidence was excluded, and an exception was taken. This was all the evidence received or offered on the trial. At the close of the evidence the defendants again moved to dismiss the complaint, which was denied, and an exception taken, and thereupon the court directed a verdict in favor of the plaintiff for $7,140.73, the amount of the former judgment with interest, and $116.14, the expenses incurred in defending the former action. A judgment was entered, from which the defendants appealed.
    
      James A. Deering, for app’lts; W. H. Clark (Charles Blandy and Terence Farley, of counsel), for resp’t.
   Follett, J.

There was no question of fact for the jury. The main contention on this appeal is, did the evidence establish a cause of action in favor of the plaintiff ? The learned counsel for the defendants insisted that their liability was not established, because it was not affirmatively shown that the judgment recovered by Cruikshank was for damages caused by some negligent act or omission of the contractors, for which, as between them and the city, they were primarily liable. That it was necessary to show this fact, unless some provision in the contract rendered it unnecessary, is established by several cases in the court of last resort. City of Rochester v. Montgomery, 72 N. Y, 65; Mayor, etc., v. Troy & L.R. Co., 3 Lans., 270, affirmed 49 N. Y., 657 ; City of Cohoes v. Morrison, 42 Hun, 216; 5 St. Rep., 106, affirmed 116 N. Y., 662; 27 St. Rep., 982; Oceanic Steam Nav. Co., v. Compania Transatlantica Espanola, 134 N. Y., 461; 47 St. Rep., 742.

Does the fact affirmatively appear from the judgment roll that the damages were caused solely by the contractors’ negligence, or, if jointly with the city, that, as between them, the contractors are primarily liable ? The judgment proper is in the ordinary form of judgments in common-law actions for the recovery of damages, and discloses neither the nature of the action nor the particular cause for which the judgment was rendered. The postea simply recites that a verdict was rendered for $4,500. The only papers contained in the roll are the summons, complaint and answer. In the third subdivision of the complaint it is set out that Nutt & Kearns entered into a contract with the city by which they undertook to build for it a sewer in Ninth avenue, between Eighty-first and Eighty-third streets. In the fourth subdivision, which is quoted in the statement of facts, it is set forth that Nutt & Kearns negligently left a pipe across the .■sidewalk, over which the plaintiff fell and was injured. In the fifth subdivision it is alleged that the “city of New York and ■its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.” In the sixth subdivisión it is averred that-“ the plaintiff, without fault or negli-’ ■gence on his part, but wholly by- reason of the wrongful act, meglect and default of the defendants, stumbled against said pipe and fell over the same.” The result of these allegations is that the injury was caused by the concurring acts of the contractors and of the city; but the issue whether the city or the contractors were primarily liable as between themselves was not presented nor tried, as, indeed, it could not have been without .the consent of both parties and the court, for reasons stated in Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra. This issue might have been raised, as between the defendants in the original action, by the service of an answer by one defendant on a codefendant, as provided by § 521, Code Civil Procedure. Whether the plaintiffs or the contractors are primarily liable for the negligence is an issue on which neither the contractors nor their sureties have had their day in court. That it is possible that the city may be primarily liable is shown by the terms of the contract introduced in evidence by the plaintiffs, for by it the city had the right to supervise and direct the manner of doing the work, and, among other things, it was provided that: “All iron, water and gas pipes which it becomes necessary to remove shall be considered as the property of the parties of the first part [city], and left in such part or parts of the streets as the engineer may direct, unless notice to the contrary is given in writing by the commissioner of public works to the said contractor, in which case the same shall be removed or otherwise disposed of at the expense of said contractor."

When indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, is primarily liable, the eases hold that the judgment is evidence in the action brought for indemnity (1) that the defendant in the first action, plaintiff in the second, was liable for the damages, (2) when notice has been given to defend, of the amount of the damages arising from the injury; but it does not establish which of the wrongdoers is primarily liable. The reason of this is plain. The liability of the defendant in the first action, and the amount of damages sustained, were issues presented and determined; but which of the wrongdoers was primarily liable is an issue not usually presented or determined in the action. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra. Is there any provision in the contract which takes this case out of the general rule? It provides “ that they will indemnify and save harmless the parties of the first part (city) from all suits and actions of every name and description brought against, them (city).” The language quoted is part of subdivision h, which contains particular words limiting and controlling the general words, and makes it plain that the contractors and their sureties-are not, by the terms of the contract, liable simply because a judgment has been recovered against the city. Sedg. St. & Const. Law, 360. Again, this action neither was brought nor tried on the theory that a judgment having been recovered against and paid by the city for acts arising out of the construction of a sewer rendered the contractors and their sureties liable under the language quoted fzxxm provision h, and it is not necessary to consider further this question.-

The fact that the city made payments to the contractors after Cruikshank was injured, and presented his claim is no defense to this action, for the contract provides:

“ The said party of the second part (contractors) hereby further agrees that the whole or so much of the moneys due to him (them) under and by virtue of this agreement as shall or may be considered necessary by the commissioner of public wozks shall or majr be retained by the said parties of the first part (city) at their sole and exclusive option until all such suits or claims for damages aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the said commissioner.”

The contract is referred to in, and is made a part of, the bond executed by these defendants. The judgment must be reversed, and a new trial granted, with costs to the appellants to abide the event.

Van Brunt, P. J., and Barrett, J., concur.  