Butts v. J. C. Mackay Co. — 25 N.Y.S. 531

Majority

p. 531

BUTTS v. J. C. MACKAY CO.

(Supreme Court, General Term, Fifth Department.

October 20, 1893.)

Headnote

1. Contractor—Negligence op Subcontractor—Liability to Tenants.

A contractor is liable to the owner’s tenants for damages to their goods caused by the leaking of a water tank just erected by a subcontractor on such owner’s building, where the water which did the injury was put into the tank for the purpose of testing it by the. personal direction of such contractor’s agent, who had general charge of the work.

2. Same—Acts op Owner’s Servant—When Imputable to Owner.

Where the water was let into the tank by the owner’s servant by direction of the contractor’s agent, no negligence is imputable to such owner on account of the act of his servant.

8. Same—Acceptance op Work.

In such case it is immaterial whether or not the contractor had accepted the work before the injury.

4. Damages—Action by Tenant’s Assignee.

The owner of the building, as assignee of such tenant’s claims for damages, may sue the contractor therefor.

Appeal from judgment on report of referee.

Action by J. De Witt Butts against the J. O. Mackay Company to recover damages for injury to the goods of plaintiff’s tenants caused by the leaking of a tank which defendant, as plaintiff’s contractor, had caused to he erected on plaintiff’s building, the claim for which damages was assigned to plaintiff by such tenants. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

A. U. Wilson, for appellant.

William 1ST. Cogswell, for respondent

The defendant is a domestic corporation engaged in supplying buildings with a sprinkling system for extinguishing

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fires, known as the “J. C. Mackay Co. Automatic Fire Extinguisher.” Plaintiff, being the owner of a block of buildings in the city of Rochester, entered into a contract with the defendant, by the terms of which the defendant agreed to equip said block of buildings with its automatic sprinkling system. A part of the equipment consisted of a tank of sufficient capacity to hold the necessary water for the operation of the plant, which the defendant contracted to furnish and place upon trestlework over the building, and connect therewith water pipes for the purpose of filling the tank with water, for all of which the plaintiff agreed to pay the defendant $1,850. The defendant sublet to the firm of J. F. Montgomery & Son, of the city of Rochester, the furnishing of the tank. Montgomery & Son constructed the tank, and placed it in position over the building, and, upon water being let into it, it was found to leak, and Montgomery & Son repaired it. One F. L. Bellows, the defendant’s secretary, had general charge of the work and of testing it. After the tank was repaired, and the pipes were in place, plaintiff’s servant, by direction of Bellows, let water into it for the purpose of testing the plant. The tank still leaked, and the water ran out of it down into the building, and damaged a quantity of goods and materials therein belonging to the plaintiff’s tenants. They severally assigned their claims for damages to the plaintiff, and he brought this action, which was duly referred, and a judgment was entered upon the report of the referee in favor of the plaintiff for the damages .to the goods, and from said judgment this appeal was taken.

The tank was placed upon a trestle over a center brick fire wall, the top of which extends above the roof of the building. The water, in leaking from the tank, ran down this fire wall behind some tin flashing which was originally inserted into the brick wall, but which had settled and drawn away from the brick, and the water thus made its way into the building, and caused the damage. The roof, notwithstanding the defect mentioned, was sufficient for the ordinary purposes of a roof. The appellant contends that, having sublet the making of the tank to Montgomery & Son, who were responsible and competent builders, it is not liable to third parties for damages caused by the negligence of their subcontractors. The tank in question was a part of the equipment which the defendant had contracted to furnish. The defect which caused the damages was in the very article which the defendant had contracted to furnish; and it may well be doubted if the rule suggested by the appellant has any application in such a case. But, without deciding that question, it has, we think, no application to this case, for, as we have seen, the defendant’s agent had general supervision of the work, and personally directed Angel, the plaintiff’s servant, to let the water into the tank, without investigating to ascertain if it would hold water. Angel had general charge of the building for the plaintiff, but he does not appear to have had any special information in regard to the work, or the condition of the tank after the repairs were made. He very properly assumed that Bellows knew whether it was safe to fill the tank with water, and no

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negligence can Tbe imputable to the plaintiff because of the act of Angel. Whether the defendant had formerly, as between itself and Montgomery & Son, accepted the tank as completed is not material. Bellows was there to test the apparatus, and in order to do so it was necessary that the tank should be filled, and in consequence of its defective condition the damage ensued. The. claims of the tenants for damages to their goods was assignable. Section 1912, Code Civil Proc. The referee found that their claims had been properly assigned to the plaintiff, and no exception was taken to this finding. We see no reason for a reversal of the judgment, and it should be affirmed.

Judgment appealed from affirmed. All concur.