(dissenting). The Graziano action, which was unanimously affirmed by the Appellate Division, Second Department (241 App. Div. 682), was submitted to the jury, by the trial justice presiding, upon the theory that it was the duty of the general contractor, Hegeman-Harris Co., Inc., to cover over the air duct opening through which the pin or bolt fell and caused injury to Graziano. In fact the court, in that case, declined to charge the following request which was made by the attorney for HegemanHarris Co., Inc.: “ Mr. Pettigrew: I ask your Honor to charge upon the evidence in this case no duty arose upon the part of defendant Hegeman-Harris Company, Incorporated, to plank or otherwise cover over the shaft in which the plaintiff received his injury, so as to protect the plaintiff from falling objects.”
The negligence charged against Post & McCord, Inc., was the dropping of the pin or bolt by one of its employees. The court in its main charge said in part:
*248“ Also, you may find the defendant Post & McCord, Inc. guilty of negligence if you determine that their employee failed to use that degree of care that an ordinarily prudent person would have used in allowing the bolt to fall, knowing that persons working below might be injured thereby.
“ You may find from the evidence that the two acts of alleged negligence by these defendants operated at the same time to produce the result which might be produced by either. In such case they are concurrent causes, each is a proximate cause of the injury and both defendants may be held liable.”
It well might be argued from the record in the Graziano case that Hegeman-Harris Co., Inc., was found guilty by the jury of something more than mere passive negligence, when it permitted Graziano who was employed by a subcontractor to work in a place which might be considered in the nature of a trap. If, of course, Hegeman-Harris Co., Inc., was guilty of active negligence, no recovery over could be had against Post & McCord, Inc., even though there were a valid indemnity agreement between those parties. (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36.)
The defendant was engaged to do only the steel work in the building where the accident occurred. The contract which it entered into with the managers, who acted as joint agents for the owner, provided, among other things, in paragraph 7 as follows: “ The Owner and the Managers also reserve the right, in their uncontrolled discretion, to award general contracts for the construction of any or all of the buildings and improvements to be included in the Development, to one or more general contractors, and, in such event, the Contractor shall perform this Agreement as though such general contractor or contractors were named in this Agreement in place of the Managers * *
However, that part of the sentence which is quoted in the majority opinion should be read in conjunction with the words which preceded it and also the words which follow. It seems to me that the purpose was, in. the main, to compel Post & McCord, Inc., to carry out its agreement to construct the steel work, regardless of the person or persons who were placed in charge, without making a “ claim for additional compensation or extension of time for the performance of this agreement * * This is made clear
when the balance of the paragraph, after the word “ Managers ” is quoted. The sentence reads on: “ except that payment to the Contractor hereunder at the unit prices herein specified and in the manner and under the conditions herein provided will be made direct by the Owner after the tonnage of the steel for each building and improvement shall have been approved in writing by such general contractor and by the Engineer.”'
*249The tenth paragraph manifestly has no relation whatever to the fifteenth paragraph which apparently is the basis of the reversal. It simply provided that Post & McCord, Inc., would carry out its agreement to construct the steel work in strict conformity with the law. The contract now under consideration covers thirty-three pages of the record. Paragraph seven appears at page 455 and paragraph ten, two pages thereafter. W
Before considering the provisions of paragraph fifteen which appears on page 461 of the record, it might be well to note that the Hegeman-Harris Co., Inc., contract with the managers, who were acting as joint agents for the owner, was not entered into until October 15, 1931, about six months after the Post & McCord, Inc., contract was executed. A cursory reading of the fifteenth paragraph of the agreement between Post & McCord, Inc., and the managers will indicate that the contractor, Post & McCord, Inc., simply agreed to indemnify the “ Owner and the Managers against all claims, suits, damages and judgments to which the Owner and /or the Managers may be subjected or suffer by reason of any injury to person or property resulting from negligence or carelessness on the part of the Contractor, its employees or permitted subcontractors in the performance of this Agreement.”
The purpose of the indemnity agreement was to secure the owner and managers against loss which might result from negligence on the part of Post & McCord, Inc. Had the parties by that paragraph intended to indemnify either a general contractor such as Hegeman-Harris Co., Inc., or other contractors who played a part in the construction of the building, words to that effect should have been written clearly into the indemnity provision. That there was no such intention is apparent when a study is made of the contract which Hegeman-Harris Co., Inc., entered into with the owner and managers. No reference can be found in that contract to the indemnity agreement which Post & McCord, Inc., had given to the owner and the managers. This court should not write something in the agreement in order to fix liability upon the defendant, Post & McCord, Inc., which apparently neither the owner and the managers on the one hand nor this defendant on the other ever intended.
The judgment in all respects should be affirmed.
O’Malley, J., concurs. ,7
Judgment reversed, with costs, and judgment directed for the plaintiff as prayed for in the complaint, with costs. Settle order on notice,