Prince v. United Traction Co.

Appeal from an order of the Supreme Court, Albany County, entered July 14, 1953, denying the motion of the defendant-appellant City of Albany for leave to amend its answer and to interpose a cross complaint against the defendant-respondent Brady. The original action arose out of an injury suffered by the plaintiff when she alighted from a United Traction Company bus and stepped onto an inclined curbing between the street and the sidewalk in front of the premises owned by the defendant Brady. It is alleged that the curbing had been installed and maintained by the defendant city in a dangerous condition. It appears that the city had removed the original curbing and had installed the inclined curbing at the request of the defendant Brady in order to provide an entranceway to her premises. The city claims that it has a right of recovery over against the property owner because the work had been done for her special benefit. There is no merit to the city’s claim. The work was all done upon the city’s property by its employees. If there were any negligence in the manner in which the work was done, the negligence was that of the city and it has no right to recover over against the abutting property owner. The mere fact that the work was done at the request of the abutting owner and for her special benefit does not give rise to any right to indemnity for any liability 980 which the city may incur on account of its own negligence. The employees of the city did not become the ad hoc employees of the abutting owner; they remained the employees of the city engaged in city work even though the city may have acted as an independent contractor for the abutting owner. Nothing to the contrary was held in Gordon v. City of Albany (278 App. Div. 233); see Mahar v. City of Albany (198 Mise. 904, affd. 278 App. Div. 1003). Order unanimously affirmed, with $10 costs to the defendant-respondent Brady against the defendant-appellant City of Albany. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.