
    THE OCEANIC STEAM NAVIGATION COMPANY, (Limited), Plaintiff v. THE COMPANIA TRANSATLANTICA ESPANOLA, Defendant.
    
      Negligence of a party by which a person was injured and a third party became liable for the same—Indemnity from the first to the third party, when it may be enforced.
    
    In the case at bar, the plaintiff held a lease of Pier 44, North River, from the city of New York, and leased the same to the defendant from December 20, 1886. Defendant authorized the Mobile Steamship Company to use the same, and it was in possession and use of the same on the 17th day of January, 1887; and on that day one of the doors of the house or shed over and on the pier fell upon one John Cleary and his leg was broken. Cleary commenced an action in the United States Circuit Court against the plaintiff for his damages and recovered judgment therein, which judgment plaintiff paid, apd now seeks to recover the amount so paid, and its counsel fees and disbursements from defendant. The plaintiff proved that when defendant took possession of the pier, the door which fell upon Cleary was in good condition and properly secured, and that two nights before the accident the said door or gate was all right.
    
      Held, That upon the assumption that the plaintiff can call upon the defendant for indemnity in case Cleary’s injuries were the result of defendant’s negligence, it would be unreasonable under the facts and circumstances placed in evidence, from the plaintiff, to infer that the defendant, during the short period of its possession, negligently allowed the said door or gate to become out of repair, and consequently the liability of the defendant to respond to plaintiff must be based upon a negligent use of said door by the defendant; but it appears from the evidence that, at the time of Cleary’s injuries, the defendant was not using the door or the pier in question, and that the Mobile Steamship was, and for some days had been in the possession and use of the pier, with the consent of the defendant. The mere fact that the latter company was there with the consent of the defendant, is not sufficient to impose upon the defendant the liability sought to be enforced upon it by the plaintiff in this action. That this conclusion being reached by the court upon the aspect of the case most favorable to the plaintiff, it is unnecessary to consider the other questions in the case.
    
      Held, that, upon the evidence and proofs of the plaintiff, the defendant was entitled to a dismissal of the complaint, and the specific reason assigned for the dismissal at the close of evidence on both sides is immaterial.
    Before Freedman and O’Gorman, JJ.
    
      Decided December 1, 1890.
    
      Exceptions of plaintiff ordered to be heard in the first instance at general term upon judgment of dismissal of the complaint ordered by the court at trial term.
    
      Wheeler, Cortis & Godkin, attorneys, and Everett P. Wheeler and Lawrence Godkin of counsel, for plaintiff, argued :—
    I. The plaintiff’s theory of its cause of action is that having been compelled to respond in damages to a third party for the negligence of the Spanish Company, it could call upon the Spanish Company to indemnify it. The principle of law upon which this right of indemnity rests is that laid down in the following cases : Village of Port Jervis v. First National Bank of Port Jervis, 96 N. Y. 550 ; City of Rochester v. Montgomery, 72 lb. 65 ; 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. One of the rules laid down in the Port Jervis case above cited, and applied to the facts in that case, is that where one stands in the position of indemnitor to others who are also liable to a third party, the indemnitor’s liability may be fixed and determined in an action brought against his indemnitee by notice of the pendency of such action, and an opportunity afforded him to defend it (96 N. Y. 557). It is admitted that notice of the pendency of the action against the White Star Company was given to the Spanish Company. When such notice has been given, the person having notice of the pendency of such action, and of the intention of the defendant therein to look to him for indemnity, is bound by the result of such action. City of Rochester v. Montgomery (supra) ; Village of Port Jervis v. First National Bank of Port Jervis (supra); Chicago City v. Robbins (supra).
    
    II. The evidence of plaintiff’s witnesses establisted conclusively that when possession was taken of the pier by the Spanish Company, the gate which fell on Cleary was sufficiently secure, and that the Spanish Company took the gate down and used it for discharging its steamers, the Mexico and Panama. Cleary was lawfully on the pier engaged in business there, and the defendant, being the lessee 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. The Spanish Company was consequently liable to Cleary for the damages he sustained in consequence of the fall of the door. These damages were liquidated by the verdict in the suit of Cleary against the present plaintiff. This judgment plaintiff has paid. In paying it it paid a debt of the defendant, and the law implied a promise on the part of the defendant to repay it to plaintiff.
    III. The record in the Cleary case, including the bill of exceptions, was put in evidence, and it appears distinctly from this that the U. S. Circuit Court did not adjudicate that the premises were in -bad order at the time of delivery of possession to the Spanish Company, but distinctly held that the White Star Company in that suit was liable to the public, for the negligence of the Spanish Company in allowing the pier to get in such condition as to be dangerous. This appears distinctly to have been the ground upon which the White Star Company was. held liable to Cleary, from the judge’s charge in the Cleary case. In that case Judge Wheeler charged the jury : “In the view which we take of this, they (the Whdte Star Company) did not relieve themselves of that duty (i. e. the duty of keeping the wharf reasonably safe) by letting another steamship line come there and collect wharfage. They still retained their lease, and they still were under that duty. They were bound either to exercise it themselves, or to have persons there who would exercise it. When they gave those agents, Munoz & Espriella, and their line, a right to be there and take the wharfage, they assumed or kept upon themselves the duty to keep it in repair the same as before, and they would have to do that, either themselves, or see to it that the other persons whom they let be there did it. If they left it to Munoz & Espriella, or to anybody else, to have the care of the wharf, they became responsible that those persons should exercise this duty and reasonable care. If the defendants are held liable here for that reason they might have their claim over against these other parties. That may all be true. But it does not relieve this defendant because the person who they put in charge might be liable. That is not it. When they let somebody else in, those they let in are let in to exercise this right and duty formally ; and if the party does not do it, it is the same as if they did not do it themselves.” The opinion was as follows : “Pee Cubiam : 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 inputation 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.” The court says that it “ was quite clearly shown that the door and fastenings were in good order ” when the White Star Company assigned to the Spanish Company. This entirely disposes of Judge Dtjgbo’s assumption that the pier was let to the Spanish Company with a nuisance on it, and conclusively proves that the U. S. Circuit Court held the White Star Company liable for the negligence of the Spanish line in allowing the pier to get into a dangerous condition. The decision of the Circuit Court of the United States in the Cleary case certainly ought to be followed in this case for two reasons : (1.) It is a decision of a co-ordinate court, composed of eminent judges, one of whom was especially familiar with the law of New York wharf property, and it was a decision of the highest Court, which under the law of the U. S. had jurisdiction to try the question. (2.) The decision was based upon the authority of the Court of Appeals in the case 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 must be devoted to public use, and the only right which the lessee takes is the right to collect wharfage and slippage from vessels which occupy the pier. The court said : “ Having accepted the grant, the defendants (i. e. the lessees) were bound to keep the premises in repair. The damage which the plaintiff sustained was caused by their neglect, and they are liable for it.” This rule is supported by the authorities in other states. Campbell v. Portland Sugar Co., 62 Me. 552.
    IV. It is not, however, material to consider whether or not tire Circuit Court was right. When one person is liable to make good to another the consequences of his own wrong, or to indemnify him in any way against the consequences of a suit based upon such wrong, it is immaterial in the judgment of the court that hears the suit against the indemnitee, whether the decision in the first case was or was not in accordance with the law. The decision is final. The court in the second suit will not retry the case. The rule on this subject was well expressed by Mr. Justice Brown in the case of The Village of Port Jervis v. The Port Jervis National Bank, 96 N. Y. 550. In his charge Judge Brown said : “In other words, the defendant could not ask another opportunity or demand another jury to retry any of the questions that had been settled in the Hart case, and the reason for this is plain because it is the policy of the law to prevent a multiplicity of suits or the retrial of the same question of fact, and where a case has been once tried before a jury or the proper tribunal and the question in dispute decided, that decision is binding, not only upon the parties to the suit, but upon the parties privy to it or who bear such a relation to it that the law says they are bound by it.”
    V. The only possible answer to the plaintiffs contention as to the Spanish Company’s liability to it, is that the plaintiff and defendant were both wrongr doers, and that there can be no contribution between wrongdoers.. The reply to this is, in the first place, that the White Star Company was not a wrongdoer at all, for the evidence showed conclusively that at the time possession was delivered to it, the pier was in good and safe condition, and two judges of the U. S. Circuit Court have so declared. And then the true rule where both parties are wrongdoers as expressed by the Court of Appeals of this state is this:. “ Where parties are not equally criminal, the principal delinquent may be held responsible to- the co-delinquent for damages paid by reason of the offencein which both were concerned in different degrees as. perpetrators.” City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 487. And.so it has always been held that where a master has been held liable by a third person for injuries sustained in consequence, of a servant’s negligence or misconduct, the master can sue the servant and recover what he has been compelled to pay the third party. Grand Trunk Ry. Co. v. Latham, 63 Me. 177., The liability to indemnify 'in the .case at bar is not a contract liability. It is a liability that springs by implication of law from the relation of the parties. In a case where a person receives a license from a muncipal body to dig in the streets “ the licensee impliedly agrees to perform the act in such a manner as to save the public from danger and the municipality from liability.” Port Jervis Case, 96 N. Y. p. 557. The judgment in the Circuit Court is relied upon only to show the amount of the damages caused to this plaintiff by the negligence of the Spanish Company. The negligence of that company is clearly proved in this case. The question then arises as to the amount of the plaintiff’s recovery. This was liquidated by the judgment of the Circuit Court. Farmers & Mechanics’ Bank v. Erie R. Co., 72 N. Y. 188, 195 ; Green v. New River Co., 4 Term Rep. 589 ; Second National Bank v. Ocean Bank, 11 Blatchf. 362, 372.
    
      Stearns & Curtis, attorneys, and James S. Stearns of counsel, for defendant, argued :—
    I. It will be seen at a glance from the above statement, that this action cannot be maintained. The judgment in the Cleary case, which is the foundation of the claim, has adjudicated that the accident was caused by the negligence of -the White Star Company. This being so, it cannot throw the whole or any part of the loss upon this defendant. No state of facts can exist which could have such an effect, because in no event where the negligence of the White Star Company has caused the accident can it recover any indemnity of this defendant.
    II. Even if this defendant had been proved guilty of negligence (which it has not been), this action could not be sustained. There can be no recovery or apportionment among tortfeasors.
    III. Where parties we in pari delicto no action lies. This does not mean that in order to apply the rule the parties must be guilty in the same proportion, but that where either party has participated in the wrongful act, or in the negligence which has caused the accident, he can have no action against the other' joint tortfeasor. The court cannot enter upon a nice inquiry to ascertain how much more guilty the one is than the other, or in what way the scales will turn. The least participation in the act will bar the recovery.
    IV. But the trial of the issues, and the verdict and judgment in the Cleary case, have adjudicated that the accident happened by reason of the carelessness and negligence of the White Star Company, and this throws the whole guilt upon that company.
    V. The judgment in the Cleary case goes further, and as it is a determination of the issues in favor of Cleary; it adjudges that the carelessness of the White Star Company was “in failing and omitting to have said door properly secured.” This is the fact as established by the evidence in that case and in this one. The door was a very heavy one, was intended to be used as a door, was originally built to run on rollers, which rests upon a strip kept in place under the door. These rollers had rotted away, the runway also was rotten, and the door could not be kept in its place, and was always in danger of falling. As soon as any one attempted to use it as a door, for which purpose it was intended, it fell. The accident happened only a month after the making of the lease, and was unquestionably due to the insecure condition in which the White Star Company had left it.
    VI. There can be no recovery in an action by one who has been compelled to pay the injured party, if the actual negligence which caused the injury was participated in by the plaintiff, nor can there be such recovery unless the accident was caused solely by the defendant, and the- defendant was under some obligation to the plaintiff to prevent the accident. Where a city, having control of the streets, has contracted out certain work in the streets, here the city is liable, not for any actual negligence in the doing of the work, but because of the negligence of its contractor. If the contractor has violated his contract, by doing the work in a negligent manner, or has failed to put up barriers when he has contracted to do so, then the city is liable in the first instance, solely for the negligence of its contractor, and it has a right of action on the contract for the damages which it has been compelled to pay. But, if the city has failed to exact a contract from the contractor to place barriers around the excavations, then the city cannot recover against the contractor the damages it has been compelled to pay because it has no contract on which to hold him. City of Buffalo v. Holloway, 3 Seld. 493. Where a city has licensed a party to make alterations in a street, or to place obstructions therein. The city is liable not for its own negligence, but because of the negligence of the licensee, and there is an implied covenant on the part of the licensee that the work shall be done in a careful manner, and that there shall be no negligence therein. Village of Port Jervis v. 1st. Nat. Bk., 96 N. Y. 550. Where a party has created a nuisance in a street, by means of an unlawful excavation or obstruction, for which the city is liable because of its general duty to abate such nuisance. Here, also, the city has not participated in the creation of the nuisance, and, perhaps, knows nothing about it. The city, upon paying the damages, has an action against the wrongdoer. City of Rochester v. Montgomery, 72 N. Y. 65.
    VII. The accident happened while another steamship company than the defendant was using the pier, and the defendant was nowhere shown to have had anything to do with it at the time. The White Star Company had taken a lease of this pier from the city many years before ; had erected thereon the shed, and agreed to keep it in repair ; had given to this defendant the use of the premises for a few weeks, and had allowed the door in question to become so dilapidated that it could not be kept in place while being used as a door without some kind of a support. While the door was being used by a steamship company other. than this defendant, it fell and broke Cleary’s leg. Cleary sued the White Star Company, and recovered because the accident was caused by its negligence in allowing the door to become so insecure and maintaining a nuisance. The White Star Company now tries to shift the loss upon this defendant, although this defendant had nothing whatever to do with the accident. A recovery in such á case would be a violation of the rules of law and justice.
   By the Court.—Freedman, J.

If it be assumed, that, as the plaintiff contends, the door which fell on Cleary was sufficiently secure at the time that the defendant obtained from the plaintiff possession of the pier, and that the judgment recovered by Cleary in the United States Circuit Court against the plaintiff is no adjudication to the contrary, and if it be further assumed that the plaintiff, having been compelled to pay the said judgment, can call upon the defendant for indemnity in case Cleary’s injuries were the result of defendant’s negligence, it would be unreasonable, under the circumstances of this case, and especially in view of the testimony of Michael Hannon a witness called by the plaintiff, and who testified that two nights before the accident the said door was all right, to infer that the defendant during the short period of its possession negligently allowed the said door to become out of repair, and consequently the liability of the defendant to respond to the plaintiff would have to be found in a negligent use made by the defendant of said door. But the evidence given at the trial shows that at the time of Cleary’s injuries the defendant was not using the door or pier in question, and that a Mobile SteamShip Company was, and for some days had been, in the possession and use of the pier. The mere fact that the latter company was there with the consent of the defendant, is not sufficient'to impose upon the defendant the liability sought to be fastened upon it in this action.

This conclusion having been reached upon the aspect of the case most favorable to the plaintiff, it is unnecessary to consider the other questions in the case. The defendant was entitled to a dismissal of the complaint upon plaintiff’s proof, and the specific reason assigned for the dismissal at the close of the evidence on both sides is immaterial.

Plaintiff’s exceptions should be overruled and judgment should be ordered for the defendant dismissing the complaint with costs.

O’Gorman, J., concurred.  