Clare v. National City Bank — 35 N.Y. Super. Ct. 261

Majority

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WILLIAM K. CLARE, Plaintiff and Respondent, v. THE NATIONAL CITY BANK, Defendants and Appellants.

Headnote

In an action to recover for injuries caused by the negligence of the owners of a building in making repairs and alterations in the same, defendants, in answer to the complaint of plaintiff, admitted they were the owners, etc., and “ that they earned alterations to he made in and upon the same (the building) at the times mentioned in the complaint. This statement or admission in the answer is not one that should exclude evidence offered by defendants to the effect, that the work of the repairs and alterations was not done under the direct supervision of defendants, but was done for defendants by a contract under independent contractors, over whose workmen defendants had no control, the workmen being responsible only to the contractors.

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Gauging alte?'ations to be made does not necessarily mean that they were actually made by the projector.

Before Monell, Sedgwick, and Van Vorst, JJ.

Decided February 1, 1873.

Appeal from a judgment entered in favor of the plaintiff against the defendants, upon the verdict of a jury rendered at a trial term.

The complaint in this action alleges, that the defendants, ' owned and occupied the "building and premises known as 52 Wall Street, New York. That the defendants were, on or about the 25th day of March, 1868, and for several weeks immediately prior and subsequent thereto, making alterations and repairs upon their said building. That by reason of the repairs, and the manner in which the same were made, it was unsafe for persons to pass over the sidewalk in front of the building, that the building was dangerous to the passers-by, and so known to the defendants ; and it was their duty to provide suitable barriers, safeguards, and warnings of the danger. That the defendants carelessly, negligently, and wrongfully omitted to provide any barrier, safeguards, or warnings to prevent persons from passing near the building, or to warn them of the danger. That on the 25th day of March, while the defendants and their employés were engaged in making the repairs, the plaintiff who was lawfully and carefully passing over the sidewalk in front of the defendants’ building, and being unaware of the unsafe condition of the building, a board was negligently and carelessly thrown or fell from the defendants’ building, through the negligence and carelessness of the defendants, or of the employés in the course of their employment, and struck the plaintiff violently upon his head, throwing him upon the ground. That the plaintiff' was thereby greatly hurt

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and injured, and incapacitated for business for several weeks, and sustained damages.

The defendants’ answer to the complaint shows :

First. “That the defendants are a corporation as alleged in the complaint, that they were and still are the owners and in part the occupants of the premises specified in the complaint, and that they caused alterations in and upon the same at the times mentioned in the complaint.”

Second. That they deny each and every allegation in the complaint contained, not before admitted.

After the plaintiff rested his case, the defendants called as a witness Moses Taylor, who testified that, as President of the Bank, he had to do with the alterations. The witness was then asked on his direct examination.

Q. “Was the New York Life Insurance and Trust “ Company equally interested with the City Bank in the '■1 work that was done ? ”

The question was objected to by plaintiff’s counsel as immaterial; the objection was sustained, the court saying, “ So far as the proposed evidence is intended to “ show who caused the occurrence, I shall admit it, but ■“ not for the purpose of proving that the work was not “being done by the defendants, or under their direc- “ tion.”

The defendants’ counsel excepted to the ruling of the court. The judge also excluded evidence offered by defendants tending to show that the work was done for them by contract, under independent contractors, over whose workmen the defendants had no control, the workmen being responsible to the contractors. To such rulings the defendants’ counsel excepted.

The defendants’’ counsel then moved to amend his answer by striking out the last clause of the first article. The motion was denied, and the defendants’ counsel excepted.

In his charge to the jury the judge said : “Under the

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“pleadings in this action I have held, and I should “ charge you, that the defendants are responsible for the “ careful manner in which the workmen whom they “ caused to be put upon the premises performed the “ work assigned them.”

Wm. Henry Arnoux, for the appellants.

Luther R. Marsh, for the respondent.

The rulings of the learned judge on the trial in the rejection of the evidence offered by the defendant, and in his charge to the jury, proceeded upon the construction he gave to the word “ caused ” in the answer. He held substantially that it was an admission on the defendants’ part that the-workmen and persons actually engaged in the alterations were the servants of, and in the employment of, the defendants. If he was correct in that construction his rulings should not be disturbed. In construing particular portions of its language, other parts of the pleading-are often necessary to be considered. In this case, the answer contains a general denial of each allegation of the complaint, except what is specifically admitted.

The complaint alleges that the defendants “ were making alterations and repairs upon their building.” This is denied, the defendants at the same time averring-that they “ caused alterations” in and upon the building. If it was the intention of the pleader to have admitted the “ making” of the alterations, then there was-no occasion for the qualification.

That the defendants caused the alterations, does not necessarily imply that the workmen engaged are in their service, or that they are responsible for their acts or negligence.

If the work was done under independent contract, made by the defendants with carpenters and masons who-

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undertook to make the repairs and to engage the necessary workmen for the purpose, for a consideration to "be paid them by defendants, such workmen could not be the servants of the defendants. Yet in such case, it might truly be said, that the defendants “ caused” the alterations.

The determination and action of the defendants to have the alterations made, may be a formal or primary cause, yet efficient agents were required for the completion of the work.

Causing work to be done is not necessarily its performance by the projector.

We may cause a building to "be erected, and yet not be the builder.

But it is unnecessary to proceed further in this direction.

The security formerly prevailing in regard to pleading has been relaxed under the Code.

The Code, § 159, provides as follows: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.”

The fair application of the rule here indicated, would seem to suggest, that in construing a pleading a restricted meaning should. not be given to words used, clearly susceptible of a more liberal construction, unless the whole pleading, shows that the language was used in its restricted sense ; especially so when such restricted interpretation would exclude a defence on the merits. For it is to be observed that the construction of a pleading, under this section of the Code, is for the purpose of its “ determining its effect.” In Richards v. Edick, 17 Barb. 270 , Judge Gridley says: “ The rule that once prevailed, that a pleading should be construed most strongly against the pleader, is now abrogated by the Code.”

In Allen v. Patterson, 7 N. Y. R., 480, the court

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says: “ The language of a pleading is to have a

reasonable intendment and construction; and when a matter is capable of different' meanings, that shall be taken which will support the declaration, not that which will defeat it.”

If the language of the answer was “ indefinite and uncertain,” which would include ambiguousness, the remedy of the plaintiff was, by motion, to have the same made more definite and certain by amendment (Code, § 160).

The fair construction of this answer is, that the defendants deny that they “ made the alterations and repairs,” although they caused them to be made.

We think that the learned judge erred in excluding the evidence offered by the defendant tending to show that the same were made by contractors under them. For this reason, there should be a new trial.

In this view it is not necessary to examine and pass upon the other exceptions taken by the defendants to the evidence, or to the judge’s charge.

The judgment should be reversed, and a new trial ■ordered, costs to abide the event.