
    Amos L. Prescott and C. Oscar Littlefield, Respondents, v. Helen G. Le Conte and Robert G. Le Conte, Appellants.
    
      Covenant by a landlord to malee repairs to a roof—his liability thereunder to a subtenant of his lessee where he negligently lea/oes the roof uncovered, while being repaired — right of the lessee, who has paid a judgment for damages recovered against him by the sub-tenant, against his landlord— the judgment is conclusive as to the damages and that the sub-tenant was not negligent — the theory upon which such a judgment is enfm'ced against the third person.
    
    Helen Gr. Le Conte and Robert G-. Le Conte demised a building to Amos L. Prescott and Gr. Oscar Littlefield by a deed containing a covenant on the part of the lessors to make necessary repairs to the roof. The lessees, with the consent of the lessors, sublet the premises to the firm of Blumenthal & Co. by a lease containing a covenant concerning repairs to the roof identical with that in the first-mentioned lease. A fire occurred upon the premises, which damaged the roof to a considerable extent. Blumenthal & Co. notified Prescott and Little-field and also the Le Contes. The latter held a policy of fire insurance upon the building, and the insurance company, upon being notified of the fire, elected, pursuant to a clause contained in the policy, to make the repairs itself. It let the contract for the making of the repairs to a third party, and the Le Contes employed an inspector to see that the work was properly done. The contractor removed the damaged portion of the roof preparatory to making the repairs, and thereafter at noon on a Saturday suspended work without properly covering the opening in the roof. The next day a rain storm occurred, in consequence of which the goods of Blumenthal & Co. were seriously damaged.
    Blumenthal & Co. then brought an action against Prescott and Littlefield to recover the damages which they had sustained. Prescott and Littlefield notified the Le Contes of the commencement of the action and gave them an opportunity to defend the same, but the Le Contes neglected to avail themselves thereof. The action was referred to a referee and resulted in a judgment against Prescott and Littlefield, which they paid. Prescott and Littlefield then brought an action against the Le Contes to recover from the latter the amount of the judgment recovered by Blumenthal & Co.
    
      Held, that, as between Prescott and Littlefield and the Le Contes, the primary duty of protecting the opening in the roof made by the insurance company's contractor rested upon the Le Contes;
    That the Le Contes were liable over to Prescott and Littlefield for the damages sustained by the latter;
    That it was immaterial whether such liability arose through the subrogation of Prescott and Littlefield by a satisfaction of the judgment to the cause of action which Blumenthal & Co. had against the Le Contes or by reason of the negligence of the Le Contes in failing to protect the roof while performing the covenant contained in the lease to Prescott and Littlefield;
    That the Le Contes, having had notice of the commencement of the action against Prescott and Littlefield and an opportunity to defend the same, the judgment rendered in that action was conclusive evidence as to the damages sustained by Blumenthal & Co., and also of the fact that Blumenthal & Co. were not guilty of negligence contributing to the loss, it appearing that both of those questions were directly involved and were fully litigated in that action;
    That it was not necessary that the Le Contes should have had formal notice to defend the action brought by Blumenthal & Co. in order to make the judgment rendered in that action binding upon them;
    That the fact that the action brought by Blumenthal & Co. was in tort and that the issues therein were referred instead of being tried by a jury did not prevent the judgment rendered therein from being binding upon the Le Conl.es; that the latter having neglected to assume the defense of the action and having left the conduct of the action to Prescott and Littlefield, were, in the absence of fraud, bound by any judgment rendered as the result of any trial recognized by the law;
    That the contention that the Le Contes were not liable over to Prescott and Littlefield upon the ground that the parties' were joint tort feasors, was untenable.
    The theory of the rule that a party who is liable over and has notice and an opportunity to defend an action is bound by the judgment is not limited to cases of direct liability or suretyship, or those where the liability is predicated upon the same contract ©r duty. The rule is based on sound public policy in order that different judicial decisions may not be made on the same state of facts, and to prevent the same questions being litigated over and over in different suits, and it applies where any privity exists between the parties by which one is liable over to the other.
    It is not essential that the party who is ultimately liable shall be liable on the same contract or could have been held liable in the former action, or that he shall be directly a party to the transaction by which the person to whom he is liable over becomes obligated; it is sufficient that between him and the party sued, the duty for a violation of which the action is brought rests primarily upon him, and that the material facts have been litigated in the former action of which he had notice and which he had an opportunity to defend.
    Van Brunt, P. J., and Patterson, J., dissented.
    Appeal by the defendants, Helen Gr. Le Conte and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of January, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1903, denying the defendants’ motion for a new trial made upon the minutes.
    
      Robert E. Deyo, for the appellants.
    
      Herbert J. Hindes, for the respondents.
   Laughlin, J.:

This action is brought to recover damages sustained by the plaintiffs through the negligence of the defendants in making, in fulfillment of a covenant contained in the lease, repairs to the roof of a building owned and leased by the defendants to the plaintiffs. The premises, are known as No. 11 Jay street, in the city of New York. The lease contained a covenant, the legal effect of which is that it became the duty of the landlord to make from time to time necessary repairs to the roof. The plaintiffs, with the consent in writing of the defendants, sublet the premises to a firm ■ known as Manhattan Mills, referred to in the points and record as Blumenthal & Co., who conducted a grocery business thereon. This lease contained a clause in identically the same language with reference to the repairs to the roof. A fire occurred on the premises, burning a comparatively small hole in the roof, but damaging the roof to a considerable extent. Prior to this time when the roof needed repairs the plaintiffs directed their tenants to communicate directly with E. H. Ludlow & Co., who were the agents of the owners, and pursuant to such notices some repairs were previously made by the owners. On the occasion of the fire Bhunenthal & Co. immediately notified the agents of the owners and also telephoned the office of the plaintiffs and informed their representatives that a fire had occurred on the premises which required their attention. The agents of the owners immediately notified the insurance company which had insured the building and had the privilege under the policy of making compensation in damages or of undertaking the repairs itself. The agents of the owners notified the plaintiffs in writing of their negotiation with the insurance company and promised to have the repairs made as soon as possible. The insurance company, after examining the premises, determined to make the repairs itself and let the contract therefor. The contractor removed the damaged part of the roof preparatory to making the repairs. The agents of the owners employed a carpenter to inspect the work and see that it was properly done. 5Vork was suspended by the employees of the contractor at noon on Saturday, the 11th day of August, 1900, and the opening in the roof was not properly covered to keep out rain. Bhunenthal & Co. protested to the men engaged upon the work against the opening of the roof being left unprotected and immediately attempted to notify the plaintiffs but without success and also notified the agents of the owners by telephone of the condition in which the roof had been left and were informed by a member of the firm that they would do their utmost to remedy the condition of which complaint was made. Bhunenthal & Co. themselves endeavored to obtain a tarpaulin with which to cover the opening in the roof but were unsuccessful. On the following day a heavy rain storm set in and the goods of Bhunenthal & Co. in the building were seriously damaged by the water. Bhunenthal & Co. brought action against the plaintiffs to recover their damages, setting up the covenant in the lease and that the repairs of the roof were undertaken by the plaintiffs, through the owners and the insurance company, and that through their negligence in conducting the work the roof was left open and the goods of Bhunenthal & Co. exposed and damaged. Blumenthal & Co. recovered a judgment against the plaintiffs which was affirmed on appeal to this court. (Blumenthal v. Prescott, 70 App. Div. 560.) These plaintiffs moved for a reargument in this court and for leave to go to the Court of Appeals and, upon both motions being denied, they paid the judgment. They then brought this action to recover over from their landlords upon the ground that, while as between Blumenthal & Co. and the plaintiffs the latter were liable, yet as between the plaintiffs and the owners, it was the duty of the owners to make the repairs, and they having undertaken to do so through the insurance company, their representative, are responsible for the negligence of those representing them in prosecuting the work and are, consequently, liable over the plaintiffs for the damages which they have been obliged to pay.

Upon the trial the qfiaintiffs gave evidence tending to show the damage sustained by Blumenthal & Co. and also introduced in evidence the judgment roll in the action between Blumenthal & Co. and them. The court ruled that this judgment was conclusive evidence as to the damages sustained and was also conclusive of the fact that Blumenthal & Co. were not guilty of negligence contributing to the loss; and the only question submitted to the jury was whether the plaintiffs themselves were guilty of any negligence contributing to the damages. Upon this issue the jury found for the plaintiffs. It is alleged in the complaint that the plaintiffs gave the defendants notice of the commencement of the action by Blumenthal & Co. against them and of the progress of the action including the reference of the issues, the trial and the appeal, and afforded the defendants an opportunity to come in and defend the action. The answer alleges that the issues were referred without the knowledge or consent of the defendants, but otherwise these allegations of the complaint are not denied. Evidence was introduced in behalf of the plaintiffs tending to show that before the issues were referred one of" the agents of the defendants, who a])peared to have had full authority to represent them, was informed that the parties contemplated referring the issues and no objection was made thereto. This evidence was controverted by the testimony of the agent. No ■ request was made for the submission of this controverted question to the jury; but we regard it as immaterial and the reason will be stated presently. The agents of the defendants, irpon being notified of the commencement of the action against the plaintiffs, consulted attorneys in the interest of the defendants with reference to the course to be pursued; but the defendants did not formally appear in or take charge of the defense of the action. The agents of the defendants were consulted by counsel for these plaintiffs from time to time throughout the progress of that action and furnished him the names and addresses of witnesses and all of the information of which they were possessed. It satisfactorily appears that all of the material facts were developed upon the trial of the former action.

It is contended that even if the defendants could in any event be~y bound by a judgment between Blumenthal & Co. and the plaintiffs they are not bound by the judgment recovered for the reason that they were not notified to come in and defend the action. This contention we regard as untenable. Ro particular form of notice and no formal notice is necessary. They had notice of the commencement of the action and an opportunity to defend the same, and under all the authorities this is sufficient, so far as notice is concerned, without any express notice to defend, to make the judg- j ment binding upon them. (Robbins v. Chicago City, 4 Wall. 657; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; Andrews v. Gillespie, Id. 487; Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 id. 461; S. C., 144 id. 663; Carleton v. Lombard, Ayres & Co., 149 id. 137; Kelly v. Forty-second St. Ry. Co., 37 App. Div. 500; Washington Gas Co. v. District of Columbia, 161 U. S. 316.)

Appellants also claim that the judgment is not binding because the issues were referred and, the action being in tort, they were triable before a jury. Assuming that it is a case where the defendants could be bound by the judgment they would have had a right to come in and assume the defense of the action and, having failed to do so, they left the conduct of the action to the plaintiffs and are bound by any judgment which is the result of any trial recognized by the law in the absence of fraud or collusion.

The appellants also contend that they are not liable over to the plaintiffs for the reason that the parties are joint tort feasors. This position is likewise untenable.' The mere statement of the case, as already made, would seem to be an answer to this claim on the part of the appellants. The plaintiffs as between them and their tenants were obligated to make the repairs, and, so far as Blumenthal & Co. were concerned, the plaintiffs were liable as if they had undertaken the repairs, although as matter of fact as between the plaintiffs and these defendants there was and could be no negligence on the part of the plaintiffs for they in no manner participated in making the repairs and delegated over to these defendants under the clause of their lease the performance of the duty which the plaintiffs owed to their tenants and which these defendants owed to the plaintiffs, and the performance of which these defendants undertook, but allowed the work to be conducted negligently. It is to be borne in mind that we are not dealing with the question, nor did we on the appeal in favor of Blumenthal & Co., as to the measure of damages in case the repairs had not been undertaken by the landlords. The repairs were so undertaken and the damages were caused by the manner in which the work was done. The workmen were not in the employ of the plaintiffs and no contractual relation existed between them. Strictly speaking, the workmen were not in the employ of the defendants, but the defendants instigated their employment by the insurance company for the purpose of fulfilling the obligation owing by the defendants on their covenant with the plaintiffs. The defendants led the plaintiffs to believe that they would make the repairs and the insurance company at their behest commenced the work. Although the defendants did not control the manner of performance of the work, they in a sense supervised it, and having undertaken the repairs even though they delegated the work to the insurance company, it was their duty to see that the opening in the roof was not left unprotected, and for a failure to perform that duty they would have been liable to Blumenthal & Co., notwithstanding that the latter were not their direct tenants. (Sulzbacher v. Dickie, 6 Daly, 469; Brennan v. Ellis, 70 Hun, 472; Randolph v. Feist, 23 Misc. Rep. 650; Wertheimer v. Saunders, 95 Wis. 573.) It thus clearly appears that, as between the plaintiffs and defendants, the primary duty of protecting the opening in this roof made by the insurance company’s contractor acting under the policy of insurance held by the defendants rested upon the latter.

If the plaintiff’s goods have been damaged the liability of the defendants therefor would be clear. Plaintiffs, instead of occupying the premises themselves, permitted Blumenthal & Co. to enter with the defendants’ knowledge, consent and acquiescence ; and, relying upon the defendants’ covenant with them, they covenanted over in like-manner with Blumenthal & Co. concerning the repairs to the roof. It is unnecessary to decide whether the covenant of the defendants ran with the land or whether the defendants would have been liable over to the plaintiffs for any judgment recovered by Blumenthal & Co. on account of costs and expenses incurred in making repairs, which, as to Blumenthal & Co., it was the duty of the plaintiffs to-make and, as between the plaintiffs and defendants, it was the duty of the latter to make. The decision of that question would not necessarily be decisive of this, for here in the action of Blumenthal & Co. the plaintiffs’ liability has been predicated, not upon the covenant in the lease, but on account of failure to perform the duty of protecting their tenant’s goods from damage by the elements while making repairs which they had undertaken and delegated to-these defendants who in turn assumed the obligation and proceeded with the work. The plaintiffs were not personally negligent ; but as to their tenant, having delegated the duty which they owed of making these repairs, they were held responsible for the manner in which the work was done. It seems to us clear that the defendants are liable over to the plaintiffs, and it is not material to inquire whether this liability arises through the plaintiffs being subrogated by satisfaction of the judgment, to the cause of action which Blumenthal & Co. had against the defendants, or by reason of the defendants’ negligence in failing to protect the roof while fulfilling their covenant with the plaintiffs by which negligence the goods of the tenant of the plaintiffs became damaged and the plaintiffs became liable therefor on account of having made a similar covenant with their tenant relying upon the covenant of the defendants to them.

The remaining question is whether the defendants are bound by the judgment recovered against the plaintiffs, both as to the amount of damages, and as to the fact that Blumenthal & Co. were not guilty of negligence which contributed to the damages. These questions were directly involved in the action by Blumenthal & Co. against the plaintiffs and appear to have been fully litigated therein. If the defendants are liable over to the plaintiffs for the damages which the plaintiffs have necessarily sustained in consequence of the acts of the defendants concerning these repairs, it would seem that the defendants should be concluded by the judgment against the plaintiffs recovered in an action of which the defendants had notice and an opportunity to defend. If this be not so, the question of the amount of damages and of the negligence of Blumenthal & Co. is still open to litigation, and there is no certainty that the determination of these questions in this action would be the same as in the former suit. The defendants, being liable over to the plaintiffs, had a right upon being notified of that action to assume charge of the defense of the same in all material respects, and to insist upon a jury trial and to present any evidence that they might have tending to show that they were not negligent, or that Blumenthal & Co. were, or in reduction of damages. The theory of the rule that a party who is liable over and Las notice and an opportunity to defend an action is bound by the judgment is not limited to cases of direct liability or suretyship, or those where the liability is predicated upon the same contract or duty. The rule is based on sound public policy in order that different judicial decisions may not be made on the same state of facts, and to prevent the same .questions being litigated over and over in different suits, and it applies where any privity exists between the parties by which one is liable over to another. (Carleton v. Lombard, Ayres & Co., supra; Robbins v. Chicago City, supra; Kelly v. Forty-second St. Ry. Co., supra.) It is not essential that the party who is ultimately liable shall be liable on the same contract or could have been held liable in the former action, or that he shall be directly a party to the transaction by which the person to whom he is liable over becomes obligated; it is sufficient that between him and the party sued, the duty for a violation of which the action is brought rests primarily upon him, and that the material facts have been litigated in the former action of which he had notice and an opportunity to defend. (Carleton v. Lombard, Ayres & Co., supra.)

R o other question presented requires special consideration.

It follows that the judgment and order should be affirmed, with' costs.

Ingbaham and McLaughlin, JJ., concurred ; Yan Bbunt, P. J., and Pattebson, J., dissented.

Judgment and order affirmed, with costs.  