Mostrototaro v. Seas Shipping Co. , 5 A.D.2d 701 ( 1957 )

Action to recover damages for wrongful death and for conscious pain and suffering against Beard’s Erie Basin, Inc., the owner of a dock where the intestate received injuries causing his death, Seas Shipping Co., Inc., and Ro'bin Line, the alleged lessees of said dock. Beard’s Erie Basin served a cross complaint for judgment over against Seas Shipping alleging that it was actively negligent. The trial court, at the end of the entire case, dismissed the complaint as against Seas Shipping and Robin Line and also dismissed the cross complaint. The jury thereafter rendered a verdict in favor of plaintiff against Beard’s Erie Basin. Beard’s Erie Basin appeals, as limited by its brief, only from that part of the judgment which dismissed its cross complaint. Judgment, insofar as appealed from, unanimously affirmed, with one bill of costs to respondent Seas Shipping Co., Inc. In our opinion, the cross complaint was properly dismissed, as there was no proof of any actionable negligence on the part of respondent Seas Shipping which was a proximate cause of the accident. Furthermore, even if it be assumed that the accident was caused by the active negligence of one Fesser, as claimed by appellant, said respondent would not be liable therefor since the record demonstrates conclusively that Fesser was not the employee of said respondent (cf. McNamara v. Leipzig, 227 N. Y. 291, 295-296; Bartolomeo v. Bennett Contr. Co., 245 N. Y. 66) but was the employee of an independent contractor, and that danger was not inherent in his work or reasonably to be anticipated (cf. Hyman v. Barrett, 224 N. Y. 436; Kagan v. Avallone, 243 App. Div. 437; May v. 11½ East 49th St. Co., 269 App. Div. 180, affd. 296 N. Y. 599).

Present — Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ.