APPEAL by the defendant, The Sicilian Asphalt Paving Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1910, upon the decision of the court, rendered after a trial at the New York
Special Term, overruling the said defendant's demurrer to the complaint on the ground that the complaint does not state facts sufficient to constitute a cause of action as to said defendant.
W. Lester Glenney [Bertrand L. Pettigrew with him on the brief], for the appellant.
Terence Farley, for the respondent.
The defendant The Sicilian Asphalt Paving Company appeals from an interlocutory judgment overruling its demurrer to the complaint.
The complaint sets forth a contract between the city of New York and the appellant for the grading and repaving of the roadway of Forty-fifth street from Tenth to Eleventh avenues in the city of New York. The work of repaving was completed and accepted on June 29, 1904. Thereafter a permit was issued to the defendant Consolidated Telegraph and Electrical Subway Company to open said street for the purpose of laying a trench across it. It is said, although not material to this appeal, that the subway company agreed to hold the city harmless from any injury that might occur to persons or property in consequence of said opening; that the appellant was notified of the issuance of said permit and consented thereto, with the understanding that appellant would restore the pavement at the expense of the subway company when the latter had refilled the trench. It is alleged that on the 30th of January, 1907, the appellant was notified (by whom it is not stated) by a written notice to restore the pavement over the openings made by the subway company, but failed to do so, whereby the said pavement was allowed to be and remain in an open, defective and dangerous condition from the time of the excavation up to and after June 9, 1907. The complaint then sets forth the particulars of an accident which happened to one Antonucci on June 9, 1907, in consequence of the defective condition of the pavement; his subsequent action against the city for damages; notice to the appellant to come in and defend; its refusal to do so, and the recovery of a judgment
by said Antonucci, and its payment by the city. The relief demanded is that the city recover from appellant the amount of the judgment so paid. If the defendant is liable over to the city, the judgment in the Antonucci case is, under the admissions implied by the demurrer, conclusive upon appellant as to the happening of the accident, the amount of damages and the absence of contributory negligence on the part of the person injured. The plaintiff relies upon the following clauses in its contract with appellant: '(B) The contractor will furnish all the labor and materials at his own cost and expense, necessary or proper for the purpose, and in a good, substantial and workmanlike manner, and in strict accordance with the specifications herein contained or hereto attached, regulate, grade and pave or repave, with asphalt pavement, on the designated foundation, the street above mentioned, and set and reset such curbstones, heading stones, etc., as may be necessary, all as herein provided, and maintain said pavement in good condition to the satisfaction of the President for the period of five years from the final completion and acceptance thereof; * * * (J) * * * During the performance of the work herein set forth he will place proper guards upon and around the same for the prevention of accidents, and at night will put up and keep suitable and sufficient lights, and he will indemnify and save harmless party of the first part against and from all suits and actions, of every name and description, brought against them, and all costs and damages to which it may be put on account, or by reason, of any injury or alleged injury to the person or property of another, resulting from negligence or carelessness in the performance of the work, or in guarding the same, or from any improper materials used in its prosecution, or by or on account of any act or omission of the contractor or his agents, and that the whole or so much of the moneys due to the contractor, under and by virtue of this contract, as shall or may be considered necessary by the Comptroller of the City of New York, shall and may be retained by party of the first part until all such suits and claims for damages as aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of the Comptroller. (M) The contractor shall immediately repair
and make good to the satisfaction of the engineer any disintegration, cracks, bunches, levees or settlement or any depression in the pavement that shall measure more than three-eighths (3/8) of an inch from the under side of a straight edge four (4) feet long, which shall occur at any time during the period of five years from the date of the acceptance of the whole work under the contract, when notified so to do by the President by a written notice to be served on him, either personally, or by leaving said notice at his residence, or with his agent in charge of the work; * * *. During the period of maintenance the contractor shall within five (5) days after the receipt of notice so to do, restore the pavement over all openings made by corporations or plumbers for making new service connections, or repairing, renewing, or removing the same, and over all trenches made for carrying sewers, water or gas pipes or any other sub-surface pipes or conduits, for the building or laying of which permits may be issued by the President * * *. (N) The measurement shall be taken after the laying and setting of the pavement and the completion of the work, and the aforesaid prices shall cover the furnishing of all the different materials and all the labor; the maintaining of said pavement in good order as often as may be required by the terms hereof, or as the President shall direct, for the period of five years, and the performance of all the work mentioned in this contract and specifications.'
We consider that it is entirely clear that the provisions of clause J, above quoted, do not sustain a cause of action upon the facts pleaded. That clause is limited to the precautions to be taken by appellant, and the risks to be assumed by it during the performance of the work, which might well be held to cover work performed in making repairs, as well as in originally laying the pavement, but cannot well be extended, by any fair construction of the language, to cover an assumption of risk while no work was in progress. If the plaintiff can recover at all it must be under that provision of clause M which requires the contractor (appellant) within five days after the receipt of notice ...