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[141 N.Y.S.2d 89] [141 N.Y.S.2d 25] Benjamin H. Siff, New York City, of counsel (Martin I. Weiss, New York City, attorney), for plaintiff-respondent.
I. Sidney Worthman, New York City, of counsel (Harold M. Harkavy, New York City, with him on the brief; Jones, Lynch & Soupios, attorneys), for third-party defendant-appellant.[141 N.Y.S.2d 26]John P. Carson, New York City, of counsel (Matthew E. Lawless, New York City, attorney), for defendant and third-party plaintiff, Orlando.
Before PECK, P. J., and COHN, CALLAHAN, BASTOW and BOTEIN, JJ.
Plaintiff has recovered judgment against Orlando, the sole defendant, for personal injuries allegedly resulting from Orlando's negligence. Orlando, who was the excavation contractor on a construction job, has in turn recovered judgment upon his third-party complaint against the general contractor, Northcrest. Implicit in the jury's verdict in favor of plaintiff was a finding that Orlando's failure to provide shoring and bracing in connection with his excavation work was a violation of the pertinent rules of the Board of Standards and Appeals that were promulgated pursuant to the authority granted under Section 241 of the Labor Law.
The theory upon which Orlando sought recovery over against Northcrest was that he was hired to do only excavating work as directed and ordered by Northcrest, and not to do any shoring or bracing. Such additional precautionary measures, he contended, were the obligation and duty of Northcrest. Since the trial court adopted Orlando's theory in charging the law governing his third-party complaint, it may be assumed that the jury found that Orlando was employed and paid only for making the excavation, and not for shoring or bracing.
The duty owed by Orlando to plaintiff, pursuant to the provisions of Section 241 of the Labor Law and the implementing rules of the Board of Standards and Appeals, is a primary and non-delegable one. Walters v. Rao Electrical Equipment Co., 289 N.Y. 57, 61, 43 N.E.2d 810, 811, 143 A.L.R. 308. Orlando's violation of this statutory duty rendered him an active, primary wrongdoer, and as such bars him from indemnification from Northcrest. Semanchuck v. Fifth Avenue and 37th Street Corp., 290 N.Y. 412, 423, 49 N.E.2d 507, 511.
Northcrest's alleged loose assumption of obligations imposed by Section 241 might in another liability frame cast it in the role of the sole primary tort-feasor. Section 241, however, recognizes no shadings of duties among those charged with its observance.
[141 N.Y.S.2d 90] '* * * When the Legislature in section 241 of the Labor Law imposed upon both the owner and contractor, the positive command to provide the protection deemed appropriate by the Legislature in building and construction work, the purpose of the command and the nature of the duty created indicated a legislative intent that the general standards of 'active' and 'passive' negligence and the correlative obligations of [141 N.Y.S.2d 27] wrongdoers based upon such distinctions which antedated the statute, should not be applicable within the field covered by the statute, to an omission to obey the statutory command.' Semanchuck v. Fifth Avenue and 37th Street Corp., supra, 290 N.Y. at page 421, 49 N.E.2d at page 510.
Orlando also contends that he was nothing more than an agent following precisely the instructions of his principal and that if held liable, he is entitled to recovery of such amount against his principal. Howe v. Buffalo, New York & Erie R. R. Co., 37 N.Y. 297; Zimmerman v. Weber, 135 A.D. 428, 120 N.Y.S. 483. Even if the evidence would support Orlando's view of his status he clearly was not an innocent agent nor an agent acting without fault, and was not relieved from personal responsibility for his own wrongdoing. Rhynders v. Greene, 255 A.D. 401, 8 N.Y.S.2d 143. Such wrongdoing was stamped as active and primary by the provisions of Section 241, and therefore foreclosed recourse to his alleged principal.
The judgment in favor of plaintiff against Orlando should be affirmed, and the judgment in favor of Orlando, as third-party plaintiff, against the ...