
    Larkin Company, Appellant, v. Terminal Warehouse Company, Respondent.
    First Department,
    March 6, 1914.
    Landlord and tenant—joint tort feasors — knowledge of dangerous condition of freight elevator in warehouse by both landlord and tenant at time of execution of lease —liability of landlord to tenant for damages paid by latter for death of employee.
    Where, at the time of the execution of a lease of a portion of a storage warehouse, with appurtenances, which included a freight elevator to be operated by employees of the tenant, both the landlord and the proposed tenant knew that at times the elevator, when in use at one floor, was moved by pulling the cable at another floor, and that property had been damaged thereby, and also knew that the platform of the elevator was not protected so as to prevent employees from falling into an open light shaft, and these conditions had been discussed between their representatives, the tenant, who has been compelled to pay damages for the death of one of his employees, caused by the sudden starting of the elevator from another floor, is neither entitled to recover over nor to contribution from the landlord, as they were joint tort feasors.
    Clarke, J., dissented.
    
      Appeal by the plaintiff, Larkin' Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of May, 1913, setting aside the verdict of a jury in plaintiff’s favor and directing the dismissal of the complaint, and also from the judgment entered in said clerk’s office on the 23d day of May, 1913, dismissing the complaint upon the said order.
    
      Paul Armitage, for the appellant.
    
      B. L. Pettigrew [Walter L. Glenney with him on the brief], for the respondent.
   Laughlin, J.:

This is an action by a tenant to recover of its landlord the amount which it was obliged to pay in settlement of an action brought for the death of one of its employees, it being claimed by the plaintiff that as between it and the defendant the latter was primarily responsible.

The plaintiff is a corporation organized under the laws of West Virginia having its principal office and place of business in the city of Buffalo, N. Y., and is engaged in manufacturing and selling soaps, perfumes and pure foods. The defendant is a domestic corporation and owns certain stores at the foot of West Twenty-seventh and Twenty-eighth streets in the borough of Manhattan, New York, part of which it uses for storage warehouse purposes and part of which it sublets.

On the 26th day of May, 1909, the plaintiff leased the fourth floor of defendant’s seven-story terminal store No. 21, on the north side of Twenty-seventh street between Eleventh and Twelfth avenues, for the period of ten and one-half months from the fifteenth day of June of that year, for the storage, packing and shipping of their products and premiums.” The building was constructed in the year 1891, and at that time a freight elevator was erected and installed therein. The plaintiff at the time in question occupied the seventh floor of the same store under a yearly renewal of a lease first made on the 16th day of April, 1906, for storing new furniture only, and the sixth floor for the same purpose under a like renewal of a lease commencing on the 5th day of January, 1907, and the westerly half of the first floor for like purpose under a like renewal of a lease commencing on the 1st day of August, 1907. The basement and second floors were used by the defendant for storage warehouse purposes, and the rest of the building was used by other tenants for storage purposes.

The right to use the elevator was not given by the lease in express terms to the plaintiff, but after describing the part of the building leased the lease contains the usual phrase, with the appurtenances. ” The elevator was originally operated by steam power, but this was changed to electricity in 1902. The defendant maintained the elevator and furnished the power to operate it, but not an operator. The elevator was operated by a hand cable within reach of the door opening into the elevator shaft on each floor of the building. It was not equipped with any device for locking it when in or out of use, and could, therefore, be operated by pulling the cable at any part of the building no matter where the elevator was at the time. The tenants, with the knowledge and acquiescence of the defendant, were accustomed to- use the elevator for carrying freight to and from the different lofts; and the employees of the different tenants were accustomed to ride on it instead of attempting to ascend or descend by a stairway which was poorly lighted and more or less obstructed, adjacent to the elevator.

On the 3d day of February, 1910, one William Grosser, an employee of the plaintiff, while engaged in its business in using the elevator, met with an accident which resulted in his death. An action was brought by his administratrix against the plaintiff to recover the pecuniary loss sustained by his death. The complaint in that action, as finally amended, charged, in two counts, liability for negligence at common law, and under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) for defects in the condition of the ways, works and machinery. The plaintiff duly notified the defendant of the commencement of the action and demanded that it defend the same, but -it failed so to do. The action was settled without trial, and on the failure of the defendant to reimburse the plaintiff this action was brought. The case was submitted to the jury and a verdict was rendered for the amount for which the plaintiff settled the action against it and $500 counsel fees. The reasonableness of the settlement as to the amount was not questioned. At the close of the evidence a motion was duly made to dismiss the complaint. The court reserved decision pending the submission of the general issue and specific questions to the jury, and after the rendition of the verdict the motion was granted, evidently on the) theory that the plaintiff and defendant were joint tort feasors. ’

The dimensions of the platform of the elevator were seven feet one inch by seven feet eleven inches, and it had no railing. It was operated in a shaft much larger than its dimensions, leaving a light shaft between it and the Twenty-seventh street wall of the building of the width of three and one-half feet at the first floor and, owing to the tapering of the outer wall, four feet and four inches at the fourth floor, and at each floor there was a window in the outer wall. The part of the shaft in which the elevator ran was only separated from the light shaft by an angle iron about six inches above each floor, and evidently a few inches in width vertically, to which just above each floor a small plate was fastened to afford access to the window. At the time of the accident decedent and a fellow-employee were engaged in moving boxes of salt and starch from the ground floor to the fourth floor. They piled twenty-five boxes in tiers, one above the other, extending somewhat higher than a man’s head, on a low platform truck with no railing and pushed it onto the platform of the elevator, and both of them rode on the elevator, the decedent’s fellow-workman operating it, to the fourth floor. There, while both of them were standing on the platform in the act of pushing the truck off, the elevator suddenly dropped about three feet and stopped, and a box fell from the top of the pile on the truck and struck the decedent and precipitated him backward into the light shaft and he fell to the bottom, sustaining injuries from which he died. The evidence shows that some one must have pulled the cable to thus start and stop the elevator; that it was not pulled by the decedent or his fellow-employee who was working with him, and that just before the elevator moved a signal was-given from anothe" " J' ^ building, not definitely located, and by some one not identified, indicating an intention to move the elevator, by calling ont, “Look out above,” “All right.”

The construction and operation of the elevator, with the exception of the change in motive power, remained the same from the time it was originally installed. Prior to the time the plaintiff took a lease of the fourth floor both the plaintiff and the defendant were aware of the fact that at times the elevator when in use at one floor was moved by pulling the cable at another floor, and that property had been damaged thereby, and were equally aware of the facts from which danger was to be apprehended to employees working on the platform of the-elevator, which was thus unprotected on the side of the open light shaft, should the elevator be suddenly moved without warning, and such dangers had frequently been a matter of discussion between their representatives. It M is manifest, therefore, that both plaintiff and defendant were f negligent, and, I think, in quite the same manner. The defendant was negligent in furnishing its tenants with a dangerous elevator, and the plaintiff was negligent in furnishing i the same elevator for the use of its employees. In this view! f; of the case it is manifest that the plaintiff and defendant are j in. pari delicto.

It is contended by the learned counsel for the plaintiff that his client was not equally at fault with the defendant for the reason that as between them the duty of maintaining the elevator rested on the defendant, and that the plaintiff was not at liberty to change it. It may well be that the plaintiff was not authorized to construct a partition between the light shaft and the elevator shaft proper; but the plaintiff was fully aware of all dangers when it leased the fourth floor. It could then have exacted any condition it saw fit or have refused to lease the premises. It could have insisted upon an agreement on the part of the defendant to make such changes either in the manner of operating the elevator or in the construction of the shaft as would remove the dangers incident to the operation of the elevator in its then condition. If it had done this, and the defendant had failed to perform its contract obligation, there would doubtless have been a right of recovery over. (Prescott v. Le Conte, 83 App. Div. 482; affd., 178 N. Y. 585; Mowbray v. Merryweather, L. R. [1895] 2 Q. B. Div. 640; Matter of the Lewis Luckenbach, 207 Fed. Rep. 66.) This, however, the plaintiff failed to do. The evidence shows, it is true, that the plaintiff’s representatives on the premises at different times complained with respect to the dangerous condition of the elevator, and at one time shortly before the lease of the fourth floor was made, the plaintiff’s New York branch manager, who subsequently represented the plaintiff in making the lease, spoke to the defendant’s assistant secretary about it and suggested that some changes should be made to render the elevator more safe, and the assistant secretary replied, “ We will get to that some day ’ or something like that. Just a casual talk about the general conditions; ” and it appears that about the time the lease was made or shortly thereafter plaintiff’s warehouse foreman complained to the defendant’s superintendent and asked why some signal was not provided to prevent accidents, and the defendant’s superintendent replied that “he would attend to it.” If the defendant could be held liable to make changes and alterations on a parol promise collateral to the lease, this evidence is insufficient to show any consideration for the promise, for it does not show any such promise at or before the execution of the lease or that the lease was executed in reliance upon the fulfillment thereof.

The learned counsel for the appellant further contends that the elevator was not constructed or maintained as required by regulations prescribed by the bureau of buildings pursuant to authority delegated and conferred by section 101 of the Building Code of the city of New York (Code of Ordinances, pt. 1, chap. 15). The regulations so made if duly served on the defendant — as to which there is no evidence—would, doubtless, have required the inclosure by itself of that part of the elevator and light shaft in which the elevator ran. If that had been done the decedent might have suffered contusions, but it is highly improbable that he would have been killed by the box falling. It is claimed, but as already indicated it has not been shown, that this elevator was constructed or maintained in violation of law. But if the law required a wall or other partition between the elevator and the light shaft, the plaintiff was fully aware that it had not heen complied with when it made the lease, and if, notwithstanding defendant did not undertake to make it a lawful structure, the plaintiff took the lease and directed the decedent to use the elevator, it was in pari delicto and is entitled neither to recover over nor to contribution. The plaintiff showed that there are simple, well-known and practical safety devices that may be readily attached to the platform of such an elevator to grip the operating cable and thus render it impossible to move or to draw the cable through the floor of the elevator, which is essential to start the elevator. The plaintiff, at least, I owed as great a duty to decedent as defendant owed to it.

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

Ingraham, P. J., McLaughlin and Scott, JJ., concurred; Clarke, J., dissented.

Judgment and order affirmed, with costs.  