Smith v. Earle

Headnote

Pleading — when complaint states cause of action against majority stockholder of corporation, lessee, of building, for death of workman through collapse of building during alteration.

Smith v. Earle, 209 App. Div. 503 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 6, 1924, wffiich reversed an order of Special Term granting a motion for a dismissal of the complaint as to defendant, appellant, herein under rule 106 of the Rules of Civil Practice. The action was to recover for the death of plaintiff’s intestate, alleged to have been caused by the wrongful act, neglect and default of the defendants, and each of them, resulting in the collapse of the Strathmore Building, located on the northeast corner of Broadway and Fifty-second street, New York city, while intestate was lawfully at work therein and defendants were engaged in converting the structure from a tenement to a non-tenement building. The motion was made upon the ground that it appeared upon the face of the complaint that defendant, appellant, was neither the owner nor the lessee of the Strathmore Building, but

that liability is attempted to be fastened upon him on the ground that the lessee, the Strathmore Leasing Company, was. a dummy to enable him as a majority stockholder and the true owner to carry on the work. The Appellate Division held that the complaint went further and alleged that the work was being done under the direction and control of defendant, appellant, and that he was guilty of the negligence which caused the building to collapse. The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, Walter J. Salmon? "