Pink v. Kraus & Silverman, Inc.

Dore, J. The relevant facts are stated in the dissenting opinion and need not be restated. At the close of the whole case on this trial both sides moved for direction of a verdict, plaintiff reserving the right to go to the jury only “ on any questions of fact which the court holds are presented by the evidence.” Plaintiff expressly concedes that Kraus' & Silver-man, Inc., the carpenter subcontractor, had no obligation to plank over the shaft. It is established without contradiction in this record that the carpenter performed its contract in erecting the barriers, and that at the time of the accident it was impossible for the carpenter to maintain the barriers in the midst of the stripping work. In that state of facts, if the jury found a verdict for plaintiff, it would have to be set aside as against the weight of the evidence. Under section 457-a of the Civil Practice Act, the judge may direct a verdict when he would set aside a contrary verdict as against the weight of the evidence. Plaintiff had the burden of proof and full opportunity to adduce evidence to show it was the intention of the parties that Kraus & Silverman was at all times continuously obliged to keep the barriers erected. On this trial plaintiff offered in evidence the record of the former trial. It is true the issue of intention between these parties was not litigated on that trial and not adjudicated by the prior judgment. But on the trial under review it was litigated, and the general contractor (plaintiff) adduced no testimony whatever to show that under the contract it was defendant’s duty to replace the barriers however they might have been removed. As the contract for this building referred to the contract for a prior building to show what items were required, neither the jury nor the court merely by the terms of this contract could ascertain the intention of the parties. To do that witnesses were necessary to testify to facts from which inferences as to that intention could be drawn. Plaintiff preferred to call none. American Employers’ Ins. Co. v. Brandt Masonry Corp. (252 App. Div. 506) is not applicable. There the complaint was dismissed at the close of the plaintiff’s case and the rule applied that all favorable inferences must be drawn in favor of plaintiff’s case. [158] Here, plaintiff adduced no evidence on the narrow issue of intention that is now before us, except the prior record which does not meet that issue and the ambiguous contract which does not explain itself. Defendant produced five witnesses, three of them disinterested. Plaintiff offered no rebuttal. Why should plaintiff get a second trial to do that which it had ample opportunity to do on this trial? The witnesses have now testified on three trials. It is unlikely that plaintiff can ever get any different testimony on a fourth trial. This opinion does not, as is contended, give effect to the same evidence offered by this plaintiff when it was the defendant in the earlier action to the effect that it had maintained the barriers to the extent possible. As against the employee plaintiff in the prior action this plaintiff (there the defendant) as general contractor was under a non-delegable duty to maintain the barriers and that issue was decided by the jury adversely to it, but; that verdict did not determine the narrower issue of liability as between the plaintiff in this action and this defendant, the plaintiff’s subcontractor. If the theory of the dissenting opinion is carried to its logical conclusion, instead of a new trial judgment should be given in the plaintiff’s favor. That opinion concedes, however, that there is an issue of fact that was not litigated on the earlier action and requires a new trial. We say it was litigated on this trial and plaintiff herein failed to adduce testimony although the opportunity was afforded to show that as between these parties it was defendant’s duty at. the time of the accident to replace the barriers however they might have been removed. The judgment appealed from should be affirmed, with costs. Martin, P. J., and Cohn, J., concur; Untermyer and Callahan, JJ., dissent.