Schroeder v. City County Savings Bank, Albany , 293 N.Y. 370 ( 1944 )

This is an action for personal injuries. Defendant City and County Savings Bank of Albany (hereinafter called the Bank) owned premises located at the corner of South Pearl Street and Norton Street in Albany. It leased the ground floor and basement of the premises, "together with right to the tenant to construct and maintain a facade along the outside of the building up to the bottom of the windows on the third floor thereof". The Bank agreed to make certain alterations in accordance with plans attached to the lease and the tenant agreed to construct a new front on the demised premises. The Bank engaged Sano-Rubin Construction Company (hereinafter called Sano-Rubin) to make the alterations required of it. Sano-Rubin applied for a permit to occupy one half of the sidewalk and one third of the street to the trolley tracks. That permit was granted. Thereafter the Bank wrote to the tenant that it had completed its part except for the electrical work which was in turn dependent upon work to be done by the tenant and except for the painting which the tenant had instructed it to postpone. Under a written contract the defendant M. Gerber Construction Company, Inc. (hereinafter called Gerber), undertook to do certain work for the tenant. A barricade was built in front of the building on Pearl Street and on Norton Street. It was made of two by fours and some heavier pieces. It was between twenty and twenty-five feet high. On the morning of February 28th the barricade collapsed. The plaintiff was injured when he attempted at the request of the police to aid in making secure that portion of the barricade which had not then collapsed but which was swaying in the wind. While so doing, he sustained the injuries for which this action has been brought.

The trial court correctly charged the jury after the defendants had rested at the close of plaintiff's case without putting in any evidence, that the doctrine of res ipsa loquitur was applicable. (Galbraith v. Busch, 267 N.Y. 230, 234; Foltis,Inc., v. City of New York, 287 N.Y. 108, 116.) After the jury had returned a verdict against the defendants Bank, Sano-Rubin and M. Gerber Construction Company, Inc., the trial court set aside the verdict as against the latter two defendants. We think that was error. The three defendants either simultaneously or in necessary rotation, with nondelegable supervision always remaining in the Bank, were in possession of the instrumentality which caused the injuries to plaintiff. None of the three defendants put in any defense. They were the ones who knew the cause of the collapse. It is not necessary for the applicability of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage. Where, as here, one or some or all of three interdependent defendants are in control and burdened with supervision of a street barricade, it is for them to explain their action and conduct when it collapses with resultant damage to another. (Bishof v. Leahy,54 App. Div. 619; Duerr v. Consolidated Gas Co., 86 App. Div. 14; Boylhart v. Di Marco and Reimann, Inc., 270 N.Y. 217,221; Schwartz v. Merola Bros. Construction Corp., 290 N.Y. 145; Mullen v. St. John et al., 57 N.Y. 567; Wrighter v.Adam Stores, Inc., 232 App. Div. 351; Hooey v. AirportConstruction Co., 253 N.Y. 486.)

As to City and County Savings Bank of Albany the judgment should be affirmed, with costs. As to the defendants M. Gerber Construction Co., Inc., and Benedetto Sano, Louis Rubin and Angelo Sano, individually and as copartners, doing business under the assumed business name of Sano-Rubin Construction Company the judgments should be reversed and a new trial granted, with costs to the plaintiff-appellant to abide the event.

LOUGHRAN, RIPPEY, LEWIS and DESMOND, JJ., concur; LEHMAN, Ch. J. and THACHER, J., dissent and vote to reverse the judgment against the defendant-appellant, and to affirm the judgment in other respects, on the ground that plaintiff was guilty of contributory negligence as matter of law.

Judgment accordingly. (See 293 N.Y. 764.)