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February 6, 1957

Leonard MACCARINI, Plaintiff,
The NEW HAVEN TRAP ROCK COMPANY, Defendant and Third Party Plaintiff, WESTCHESTER COLPROVIA CORPORATION, Third Party Defendant

The opinion of the court was delivered by: LEVET

This is a motion by the defendant, the New Haven Trap Rock Company, for a directed verdict and for judgment notwithstanding the jury's disagreement.

The suit was brought by Leonard Maccarini against the New Haven Trap Rock Company (hereinafter called 'New Haven' or 'defendant') to recover for injuries juries which he sustained as a result of the alleged negligence of said defendant. In his complaint, plaintiff charges that he was injured on August 5, 1953, while in the employ of the Westchester Colprovia Corporation (hereinafter called 'Colprovia'), which operated a plant located in the town of Brewster, New York. The structure, plant and machinery were owned by the defendant, New Haven. Plaintiff alleges that while he was in the process of attempting to move a conveyor belt mounted on wheels on a narrow gauge track and which operated above four storage bins, his left hand was pulled by a rope toward a revolving capstan and was caught between the capstan and the rope which operated the conveyor belt. As a result, he lost his left hand and sustained a broken left arm.

Plaintiff alleges that the defendant was negligent in causing the structure and its machinery, including the ropes, pulleys and appurtenances about which he worked, to be and remain in an unsafe, dangerous and worn condition. He also claims that the defendant was negligent in failing to have the winch pulley (or capstan) and conveyor belt properly and adequately guarded; in failing to provide him with a safe place in which to work, and in failing to take necessary and proper precautions for his safety.

 The defendant contends that it was not responsible for plaintiff's injuries because it had leased the property in question to Colprovia and that at the time of the accident it was neither in occupation nor in control of the premises on which plaintiff was injured.

 After deliberating for some time, the jury was unable to arrive at a verdict. After the jury had been discharged, the Court reserved decision on defendant's motions for a directed verdict and for judgment.

 Before the defendant can be held to answer for the alleged negligence with respect to its conduct toward the plaintiff, it must first be established that it was under a duty to exercise reasonable care for plaintiff's safety in connection with the plant and machinery operated by its tenant, Colprovia. The general rule is that, in the absence of an agreement or statute to the contrary, a landlord is not liable to employees of its tenant for conditions which develop on the premises after possession or control has been transferred to the tenant. Campbell v. Elsie S. Holding Co., 251 N.Y. 446, 167 N.E. 582; Senk v. City Bank Farmers Trust Co., 2 Cir., 1940, 108 F.2d 630. There is no evidence in the record to indicate that any one other than Colprovia was in possession or occupation of the premises in question at the time when plaintiff was injured. Consequently, plaintiff's claim against the defendant hinges upon whether or not the defendant exercised at said time a measure of control over the premises sufficient to establish a duty toward plaintiff.

 Plaintiff introduced into evidence excerpts from the deposition of Edward T. Perry, vice president of the defendant, New Haven. Perry stated that the defendant is in the business of selling crushed stone and that the storage bins and machinery were purchased by the defendant in the middle '20s; that the defendant had owned them ever since, although, after having been previously leased to Cooney Brothers, a competitor of Colprovia, the bins had been idle for some time prior to 1952. In February of 1952, a business arrangement was arrived at between Messrs. Perry and Reigeluth on behalf of the defendant and Mr. Leo on behalf of Colprovia, whereby Colprovia was to have the use of the bins or silos at Brewster, New York, in return for which Colprovia was to purchase its trap rock from the defendant. Perry said that under this agreement the defendant was to put the plant in good operating condition, after which Colprovia was to be responsible for maintaining it in proper condition, including the payment of taxes. In his letter to the defendant, dated February 22, 1952 (Exhibit 13), Mr. Leo, the president of Colprovia, set forth his understanding of the agreement, which included the following remarks:

 'You agreed to sell us your trap rock stone f.o.b. cars your silos at Brewster, New York on C.N.E. Railroad for calendar year 1952 for the following prices * * *.

 * * * * *

 'It is further understood that you will lease these silos to us for rental of $ 1.00 per year and we will provide the necessary labor for unloading the cars and loading the trucks.'

 In accordance with this agreement, the defendant proceeded to put the plant in good operating condition for Colprovia's use.

 In a letter dated March 26, 1952 (Exhibit 14), Mr. Kemp of Colprovia requested a belt and belt fasteners, which the defendant thereafter shipped to Colprovia (Exhibit 15). Sprockets and chain links were installed at the Brewster plant and the payments for these items were made by the defendant because 'this is material that was required to put the bins in proper operating condition.' (Exhibit 19) However, in accepting the invoice for these replacements, the defendant informed Colprovia as follows:

 'It is our feeling, however, that future replacements of this type should be handled by you, as agreed in our original conversations about the bins. The Transmission Equipment Company of Connecticut in Wallingford has spare sprockets and pins in stock for you in the event that you want to replace these again. These were ordered for you at your request. I expect that they will want to bill these out to you, and suggest that you get in touch with them so that they can ship the parts to you.'

 Fred H. Edwards testified that prior to his retirement in May, 1953, he was a superintendent for the defendant for some 42 years, and that in November of 1952, he was sent by the defendant to supervise certain repairs and improvements that were being performed at the Brewster plant. In a letter to the defendant, dated November 25, 1952 (Exhibit C), Seth L. Kemp, supervisor for Colprovia, expressed his company's thanks to Edwards 'for the efficient manner in repairing the Brewster unit' and added: 'It runs very nice and will do everything possible to keep it going that way.' Edwards noted certain suggestions on the back of this letter (Exhibit L), which were ...

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