(dissenting).:
I do not think the -defendant was entitled to prove that ' Bridget Harsh fell at .some -other place on the sidewalk than upon the ice formed from the -defective water pipe maintained by the present defendant.
In her complaint against the city, this plaintiff, she alleged that she fell on ice formed across the sidewalk from water leaking from a defective pipe on defendant’s building. It must be presumed in the absence of anything to the contrary that that issue was the one tried and determined in her favor in her action against the plaintiff. If the issue in that respect in that action was changed on the trial the burden was-on the present defendant to show that fact, which he failed to do,. She could have sued both the city and the present defendant. She chose to sue the «city alone, and the defendant’s negligence was not material to her recovery. All that was necessary for her to show was that the defect -existed to the knowledge of the oity, or that it had existed for such a length of time that the city was presumed to have had knowledge of its existence. As emphasizing the fact that the defect existed she might show that it was caused by the active negligence of the defendant, -or by bis passive negligence which he should have remedied. But all that was necessary for her to show in her action against the city., and all that was in issue, was that a -defect existed which the city ought to have taken notice of and remedied. The *498defendant had timely and proper notice to enable bim to come in and defend the action brought by her against the city and defeat the issue that she fell on ice formed on the sidewalk from water leaking or flowing from the pipe maintained by him on his building and for which the city was liable because it ought to have remedied it, but for which he was also liable because he himself in the first instance created the defect. He neglected to come in and defend. She recovered judgment which was paid, and the city now brings'action against bim as-the primary wrongdoer. He having had notice of the pendency of that action and an opportunity to defend, the judgment obtained therein against the city was conclusive against him not only as to the amount of damage which the injured person sustained, and that the injury was not the result of contributory negligence, but also as to the existence of the defect alleged and the fact that she sustained the injury from such defect. (5 Thomp. Neg. § 362; City of Rochester v. Montgomery, 72 N. Y. 65; Mayor, etc., v. Brady, 151 id. 611.)
Thompson on Negligence (supra) lays down the rule as follows: “If notice has been given to the wrongdoer to come in and defend, the judgment against the corporation is conclusive (against him) as to existence of the defect, the fact that the traveler sustained the injury from it without fault on his part, and that he was damaged to the amount for which the judgment is recovered.”
In City of Rochester v. Montgomery (supra) Raparlo, J., says: “The plaintiff having given notice to the defendant of the action brought against it by McNeiss, and that it claimed that the defendant would be liable to indemnify it against any recovery therein, the defendant, if shown to have wrongfully created or negligently left the obstruction, was ' concluded by the judgment in that action as to the liability of the plaintiff to McNeiss for the damages, and was consequently .concluded as to any matter which might have been urged as a defense against such liability.”
It is upon this principle that the question of the contributory negligence of the party injured is not open to contest by the primary wrongdoer when sued after notice to come in and defend by a secondary wrongdoer who has been obliged *499to pay a judgment recovered by a third party who has been injured.
That Bridget Marsh, the plaintiff in the action against the city, did not fall upon the ice caused by the leaking water pipe, and that she fell at some other place on the sidewalk, was a matter which might have been urged against her in the action against the city. By his failure to come in and defend the defendant was bound by the adjudication that she did fall as she pleaded she did upon the ice caused by the defective water pipe. All that the plaintiff was obliged to prove in the present action to entitle it to recover from'the defendant the damages which it was obliged to pay was that the defendant was the primary wrongdoer because he maintained a water pipe which threw water on and across the sidewalk which was likely to and did freeze and cause an obstruction to travel.
The city and the defendant were not joint wrongdoers, although it was the duty of the city to keep its sidewalk in reasonable repair. The defendant was the primary wrongdoer. Where one negligently creates a situation which it becomes the duty of another to rectify and thus as to third persons both become liable and the latter is compelled to pay damages, he may compel reimbursement from the one who first instituted the wrong. This rule is based upon the fact that although both are hable as to third parties, as between themselves there is a primary and secondary liability, and if the one secondarily liable is compelled to pay, the one who instigated the wrong must make him good. If notice be given and an opportunity to defend accorded to the primary wrongdoer, the judgment which has been obtained against the secondary wrongdoer is conclusive upon all questions involved, except the fact that such alleged primary wrongdoer was not guilty of the primary negligence or wrong which caused the injury. (Scott v. Curtis, 195 N. Y. 424.)
In the present case the plaintiff proved the existence of the defective water conductor maintained by defendant and that water flowed from it across the sidewalk, forming. ice, before and up to the time of the injury to Bridget Marsh, contrary to an ordinance of the city. This proved the primary wrong to *500be. on the part «of the defendant and there was no evidence controverting the situation.
The offer of the defendant to prove that there was a, groove across the sidewalk for the water to run off aggravated the situation instead of palliating it. . The -only other proof which the defendant offered to make was that Bridget Marsh did not fall on this icé but at a -distance therefrom. The defendant in that former action, having notified this defendant of its pendency he had the. opportunity to come in then- and show that, although he was a wrongdoer .in permitting water from his building to- flow across the sidewalk, she was not injured thereby but fell at another place. Not having seen lit to avail himself of that defense in that action, he is now «concluded from proving it.
While the defendant asked to go to the jury upon all the questions in the case, there were no question's for the jury to pass upon, and the direction of verdict in behalf of the plaintiff was proper, and the judgment should he affirmed.
■ Smith, P„ J,.., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.