MOTION by the plaintiff, the Continental Asphalt Paving Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court upon the pleadings on a trial at the New York Trial Term on the 7th day of November, 1910.
William K. Hartpence, for the motion.
J. Arthur Corbin, opposed.
The plaintiff, in pursuance of a contract with the city of New York, furnished and laid a twelve-inch high pressure fire service main in Eighteenth street, between Sixth and Seventh avenues. Before the same had been formally turned over to and accepted by the city it was damaged by a sub-contractor of the defendant, and this action was brought to recover therefor. At the trial before any evidence had been taken, upon the complaint and opening, defendant moved for judgment dismissing the complaint. The motion was granted, and an exception taken, which was ordered to be heard in the first instance at the Appellate Division. The motion to dismiss was in effect a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and the ruling, to which an exception was taken, cannot be sustained unless it appears that, admitting all the facts alleged, a cause of action is not set forth. (Abbott v. Easton, 195 N.Y. 372; Doty v. Norton, 133 A.D. 106.)
The complaint, after setting forth the corporate character of the plaintiff, alleges that the New York and Jersey Railroad Company, a corporation organized under the laws of the State of New York, on the 7th of March, 1905, obtained from the city of New York a franchise for the construction of an underground railroad under Sixth avenue; that this franchise was thereafter acquired by the defendant in this action, which assumed both by operation of law
and by the express provision of articles of consolidation all of the duties and obligations of the New York and Jersey Railroad Company; that by this franchise the railroad company agreed that in the course of construction of such underground railroad it would maintain the care of all underground structures at its own expense, and would, at all times, by suitable bridging or other supports, maintain in an entirely safe condition all water and gas mains encountered during the progress of the work, and whenever it became necessary to reconstruct any sub-surface structure it would be done by it or at its expense; that it would make good to the city all damages which should be done to its property by the construction or operation of the railroad, and would make good to every owner of property abutting upon the railroad, or which should be injured by the work of construction or operation thereof, all physical damages which should be done to such abutting or injured property through any act or omission of the company, or its successor, or any contractor, sub-contractor or other person in the course of any employment upon the construction or operation of the railroad or any part thereof; then follow allegations as to the making of the contract between plaintiff and the city; performance of the work under it; the making of a contract between the New York and Jersey Railroad Company and the Degnon Contracting Company for building the underground railroad; that in the course of construction of such road it became necessary to reconstruct a sewer through Eighteenth street; the making of a sub-contract between the Degnon Contracting Company and one Pilkington to reconstruct such sewer; the failure of the sub-contractor to support and maintain in an entirely safe condition the twelve-inch high pressure main laid by the plaintiff in Eighteenth street, and the consequent injury thereto through the negligence of the said contractor and sub-contractor; the damages sustained by reason thereof, and the demand and refusal of payment for the damages caused thereby.
I am of the opinion that the complaint states a cause of action, and that the motion to dismiss was erroneously granted. One of the provisions in the franchise was that the New York and Jersey Railroad Company would 'make good to the City all damages which shall be done to the property of the City by the construction or operation of the railroad, and shall make good to every owner of
property abutting upon the railroad, or which shall be injured by the work of construction, or by operation thereof, all physical damage which shall be done to such abutting or injured property through any act or omission of the tunnel company [New York and Jersey Railroad Company], or successor thereof, or of any contractor, sub-contractor or other person in the course of any employment upon the construction or operation of the railroad or any part thereof.' This provision in the franchise was made for and inured to the benefit of the plaintiff.
A somewhat similar franchise was considered by this court in Haefelin v. McDonald (96 A.D. 213). That franchise, however, had in it only a covenant to save harmless the city itself, and it was for that reason that the court reached the conclusion it was not the intention of the parties to impose upon the contractor a liability to the owners of abutting property. This, Mr. Justice INGRAHAM took occasion to point out, saying: 'There is no indication in any part of the contract that it was the intention of the parties to impose upon the contractor a liability to the owners of the abutting property for negligence of sub-contractors or others over whom he had no control; and if such had been the intention, a clause expressly imposing such a liability would have been inserted.' This franchise, however, has such clause, and it is fairly to be assumed that it was inserted by reason of the decision of the Haefelin case. That case was decided by this court in July, 1904. The franchise under consideration was granted March 7, 1905, and by it the New York and Jersey Railroad Company (whose obligations the defendant assumed) specifically agreed to make good to every owner of property abutting upon the railroad or which should be injured by the work of construction or operation, all damage which should be done to such property through any act or omission on its part, or its successor, or any contractor or sub-contractor. The complaint expressly charges that in the course of ...