Malony v. Brady — 45 N.Y. St. Rep. 864

Majority

p. 864

Patrick Malony, Resp’t, v. Edward Brady, App’lt.

(New York Common Pleas, General Term,

Filed May 2, 1892.)

Headnote

1. Negligence—Liability op contractor to indemnify landlord for RESULTS OF HIS NEGLIGENCE.

Where the owner of a building is compelled to pay his tenants for damages sustained by them through the negligence of a contractor employed by him to repair the roof, the contractor is bound to indemnify him.

2. Same—Damages.

The sum paid to repair the effects of such negligence, unless it is excessive, is the proper measure of damage.

Appeal from judgment of a district court, on a verdict.

Action for damages from negligence of defendant in repairing the roof of plaintiff’s building, whereby damage accrued to his tenants. Having paid those damages, plaintiff sues for indemnity from defendant.

Edward S. Johnston, for app’lt; Matthew Daly, for resp’t.

As the party ultimately answerable for the wrong, defendant is bound to indemnify plaintiff.

Sulzbacher v. Dickie, 6 Daly, 469 , is an explicit authority in support of defendant’s liability. Moreover, on a former appeal in this case, we adjudged the defendant liable upon a state of facts substantially identical with that established on the trial under review. Malony v. Brady, 38 St. Rep., 803 . In this court, at all events, the question is concluded.

We may add, however, that the defendant’s guaranty afforded another and independent ground of recovery.

The sum paid by plaintiff to repair the effects of defendant’s negligence, unless it were excessive, is the proper measure of the damages for which he was responsible. The cases cited by the appellant are not at all to the contrary.

We perceive no error in the return; and, accordingly, the judgment is affirmed, with costs.

Daly, Oh. J., Bischoff and Pryor, JJ.,' concur.