Appeal from Trial Term, New York County.
Action by Edward Corning against William H. Spelman. From a judgment entered on the dismissal of the complaint on a trial before a jury, plaintiff appeals. Reversed.
Where an owner who had employed a contractor to install plumbing sued the contractor for the failure of a third person to perform his agreement, and the third person was served with the complaint alleging such failure as the basis of recovery, and he failed to defend, the judgment for the owner conclusively established the liability of the third person to the contractor.
[115 N.Y.S. 367] Walter Gordon Merritt, for appellant.
Frank M. Avery (Edgar J. Phillips, on the brief), for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
The complaint alleges: That the plaintiff entered into a contract with one Rossiter whereby the plaintiff agreed to install or cause to be installed a system of piping and plumbing, in which the specifications provided:
" After the completion of the plumbing work according to these specifications and before its final acceptance by the owner, the plumber must turn on the water, leave everything in perfect working order, remove all his tools and surplus material from the premises and obtain a final certificate of approval from the architect. The plumber must guarantee the quality and keep in repair and good condition all parts of the work without extra charge for one year after the date of the final certificate."
That the defendant was engaged in the business of piping and plumbing, and plaintiff, for the purpose of fulfilling his contract with Rossiter, entered into a contract with the defendant, a copy of which is annexed to the complaint. That in the installment of said system of plumbing and piping in this building a pipe was run up alongside one of the pillars of said building, and attached to said pipe and underneath each floor of the building was a short branch pipe known as an " offset pipe," each of which was to be capped in order to prevent the escape of water. That said defendant, in an unworkmanlike manner, carelessly and negligently and in violation of his contract with said plaintiff, left one of said offset pipes on the eleventh floor of said building without a cap, and that the defendant carelessly and negligently, and in violation of the terms of his contract with the plaintiff, turned over said system of plumbing in said incomplete condition, without capping said offset pipe on the eleventh floor, and represented to the plaintiff that the plumbing was complete, and plaintiff accordingly paid to the defendant the money due him under said contract. That the plaintiff, relying upon and believing the representations of the defendant, turned over said building to the said Rossiter. That subsequently water escaped from said uncapped offset pipe on the eleventh floor of the building, and caused damage to the merchandise of the tenants in said building. That in April, 1905, said Rossiter commenced an action against the plaintiff for the damage caused to said building and the property of the tenants. That plaintiff thereupon mailed a copy of the said summons and complaint to the defendant, notifying defendant that he believed the claim of Rossiter to be a just claim, and, unless said defendant came in and defended said action, he would permit the court to determine the damages suffered by Rossiter by reason of the failure of the defendant to cap said offset pipe, and that if the plaintiff was obliged to pay any money to the said Rossiter for said damage the plaintiff would hold the defendant liable [115 N.Y.S. 368] therefor. The defendant refused to come in and defend the said action, and the said Rossiter recovered judgment against the plaintiff, for the amount of which judgment the plaintiff demands judgment against the defendant in this action.
By the contract annexed to the complaint the defendant agreed to furnish all the labor, materials, tools, and appliances required for completing the plumbing and gas-fitting, and the installation of the water boiler in connection with the building named, " according to the revised plans and specifications prepared for the same, *** which plans and specifications are hereby referred to and made part of this contract."
In the answer the defendant admits receiving a copy of the summons and complaint in the action brought by Rossiter against the plaintiff, admits receiving letters from the plaintiff, and denies the other allegations of the complaint.
Upon the trial of the action Rossiter was called as a witness, and testified that he commenced an action against the plaintiff, whereupon the judgment roll in that action was admitted in evidence. The complaint in that action, after alleging that Rossiter, the plaintiff therein, was the owner of the property upon which the building was erected, set forth the specification which provided that the plumber should turn on the water and leave everything in perfect working order, guarantee the quality, and keep the work in repair and good condition for one year from the date of the final certificate. That the defendant in that action, for the purpose of fulfilling his contract to establish said system of plumbing and piping, entered into a contract on or about the 25th of August, 1903, with one Spelman, the defendant in this action, whereby said Spelman agreed to perform said work for the defendant. It is then alleged that as part of this system of plumbing there was to be a short branch pipe known as an " offset pipe," which was to be capped in order to prevent the escape of water-
" that said Spelman (the defendant in this action) in an unworkmanlike manner, carelessly and negligently and in violation of his contract with said defendant, left one of said offset pipes, on the eleventh floor of said building, without a cap *** and that the defendant, carelessly and negligently and in violation of the terms of his contract with the plaintiff, turned over said system of plumbing to the plaintiff in said incomplete condition without capping said offset pipe on the eleventh floor."
It was further alleged that water escaped from said uncapped offset pipe from the eleventh floor and caused damage for which the plaintiff in that action recovered, which judgment was paid by the plaintiff in this action giving to Rossiter a note and the judgment was satisfied of record. The plaintiff then proved letters to the defendant, inclosing a copy of the summons and complaint in the action of Rossiter against the plaintiff, calling the defendant's attention to the fact that the claim was for damages due to the fact that an offset pipe was not capped; that the defendant was responsible for this damage, if any; and defendant was notified to come in and defend the action. In reply to this the defendant returned the summons and complaint to the plaintiff, stating that he had no financial interest whatever in the matter. In reply, the plaintiff again wrote to the defendant stating that [115 N.Y.S. 369] he was informed by his lawyer that unless the defendant should defend the action the plaintiff was bound to pay damages, the defendant would be bound by the judgment, again requesting the defendant to make himself a party to the action, so that all questions of liability can be settled ...