Mayor of New York v. Brady

FOLLETT, J. There was no question of fact for the jury. The main contention on this appeal is, did the evidence establish 9 cause of action in favor of the plaintiffs? The learned counsel for the defendants insisted that their liability was not established, because it was not affirmatively shown that the judgment recovered by Cruikshank was for damages caused by some negligent act or omission of the contractors, for which, as between them and the city, they were primarily liable. That it was necessary to show this fact, unless some provision in the contract rendered it unnecessary, is established by several cases in the court of last resort. City of Rochester v. Montgomery, 72 N. Y. 65; Mayor, etc., v. Troy & L. R. Co., 3 Lans. 270, affirmed 49 N. Y. 657; City of Cohoes v. Morrison, 42 Hun, 216, affirmed 116 N. Y. 662, 22 N. E. Rep. 1134; Oceanic Steam Nav. Co v. Compania Transatlantica Espanola, 134 N. Y. 461, 31 N. E. Rep. 987. ■ Does the fact affirmatively appear from the judgment roll that the damages were caused solely by the contractors’ negligence, or, if jointly with the city, that, as between them, the contractors are primarily liable? The judgment proper is in the ordinary form of judgments in common-law actions for the recovery of damages, and discloses neither the nature of the action nor the particular cause for which the judgment was rendered. The postea simply recites that a verdict was rendered for $4,500. The only other papers contained in the roll are the summons, complaint, 'and answer. In the third subdivision of the complaint it is set out that Nutt & Kearns entered into a contract with the city by which they undertook to build for it a sewer in Ninth avenue, between Eighty-First and Eighty-Third streets. In the fourth subdivision, which is quoted in the statement of facts, it is set forth that Nutt & Kearns negligently left a pipe across the sidewalk, over which the plaintiff fell and was injured. In the fifth subdivision it is alleged that the “city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid.” In the sixth subdivision it is averred that “the plaintiff, without fault or negligence on his part, but wholly by reason of the wrongful act, neglect, and default of the defendants, stumbled against said pipe and fell over the same.” The result of these allegations is that the injury was caused by the concurring acts of the contractors and of the city; but the issue whether the city or [300] the contractors were primarily liable as between themselves was not presented nor tried, as, indeed, it could not have been without the consent of both parties and the court, for reasons stated in Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra. This issue might have been raised, as between the defendants in the original action, by the service of an answer by one defendant on a codefendant, as provided by section 521, Code Civil Proc. Whether the plaintiffs or the contractors are primarily liable for the negligence is an issue on which neither the contractors nor their sureties khve had their day in court. That it is possible that the city may be primarily liable is shown by the terms of the contract introduced in evidence by the plaintiffs, for by it the city had the right to supervise and direct the manner of doing the work, and, among other things, it was provided that: “All iron water and gas pipes which it becomes necessary to remove shall be considered as the property of the parties of the first part, [city,] and left in such part or parts of the streets as the engineer may direct, unless notice to the contrary is given in writing by the commissioner of public works to the said contractor, in which case the same shall be removed or other-wise disposed of at the expense of said contractor.” When indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, is primarily liable, the cases held that the judgment is evidence in the action brought for indemnity (1) that the defendant in the first action, plaintiff in the second, was liable for the damages, (2) when notice has been given to defend, of the amount of the damages arising from the injury, but it does not establish which of the wrongdoers is primarily liable. The reason of this is plain. The liability of the defendant in the first action, and the amount of damages sustained, were issues presen led and determined; but which of the wrongdoers was primarily liable is an issue not usually presented or determined in the action. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra. Is there any provision in the contract which takes this case out of the general rule? It provides “that they will indemnify and save harmless the parties of the first part [city] from all suits and actions of every name and description brought against them [city.]” The language quoted is part of subdivision h, which contains particular words limiting and controlling the general words, and makes it plain that the contractors and their sureties are not by the terms of the contract liable simply because a judgment has been recovered against the city. Sedg. St. & Const. Law, 360. Again, this action neither was brought nor tried on the theory that a judgment having been recovered against and paid by the city for acts arising out of the construction of a sewer rendered the contractors and their sureties liable under the language quoted from provision h, and it is not necessary to consider further this question. The fact that the city made payments to the contractors after Cruikshank was injured and presented his claim is no defense to this action, for the contract provides: [301] “Tlie said party of the second part [contractors] hereby further agrees that the whole or so much of the moneys due to him [them] under and by virtue of this agreement as shall or may be considered necessary by the commissioner of public works shall or may be retained by the said parties of the first part [city] at their sole and exclusive option until all such suits or claims for damages aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the said commissioner.” The contract is referred to in, and is made a part of, the bond executed by these defendants. The judgment must be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur.