Lawless v. Board of Education

Bergan, J. (dissenting).

We are reviewing a decision made at Special Term on the face of the pleadings; and when these pleadings are read literally it ought to be held that the Special Term was right in denying the motion to dismiss the third-party complaint. The main complaint, besides alleging his active negligence, alleges Van Etten’s passive negligence, i.e., that he “suffered” and “permitted” a defective wall to exist and “ gave no warning” of the defect, which, the. complaint also describes as a “ nuisance, ”, If liability were ultimately to be imposed against Van Etten based only on that part of the plaintiff’s complaint which pleads a passive failure to give warning; or because he suffered and permitted a nuisance to continue, based on the general responsibility that Van Etten had for this portion of the structure under his contract; and if the danger had actually been created by the O’Connell corporation, I would think there would be a good case of liability over.

The third-party complaint of Van Etten does not plead that Kerwan was Van Etten’s employee, but, on the contrary, Van Etten pleads that O’Connell did the work and is responsible for the conditions that existed in the place where plaintiff' claims he. was hurt. It alleges that if plaintiff’s injury was due to negligence, it was the negligence of O’Connell, ‘‘ his agents, servants or employees ”, The third-party complaint further alleges that electric conduit channels in the foundation were *659installed by Kerwan who “ was for that purpose the employee of Frank W. O’Connell, Inc., the third-party defendant and not the agent or employee of defendant, Paul R. Van Etten

This seems on its face a sufficient pleading of fact that Kerwan was O’Connell’s employee; but in any event it is clearly not a concession that Kerwan was Van Etten’s employee; and the omnibus allegation that this work was done by the O’Connell corporation “ his [sic] agents, servants or employees ” is a sufficient allegation that O’Connell did the work, to sustain the third-party complaint as a pleading.

It is true that the brief of the third-party plaintiff makes certain concessions; but such informal concessions are not only unsatisfactory generally when they run counter to a pleading upon which the court at Special Term has decided a motion, but specifically in this case it is not easy to see exactly what is factually conceded. The Van Etten brief says this: “ It is conceded that Kerwan was sent to the job by Van Etten to install the electric conduit. Kerwan was, of course, on Van Etten’s pay roll and in the first instance under the direct supervision and control of Van Etten. It was Kerwan who cut away a portion of the foundation wall preparatory to the installation of the electric conduit.”

That Kerwan was “sent to the job ” by Van Etten “to install the electric conduit ”; and was “ on ” Van Etten’s “ pay roll”; and was “in the first instance” under Van Etten’s direct supervision may mean many different things factually and the concession in this form does not necessarily mean that he was under Van Etten’s control when he actually did the work; or that he was partly under Van Etten’s and partly under O’Connell’s control; nor is it necessarily inconsistent with the other allegation of the pleading of Van Etten which sets up that O’Connell did the work by “ his agents, servants or employees ”.

If we are to act on a concession which runs contrary to a pleading, we ought to have it down plainly in writing and on the record; and a concession appearing in a brief as a facet of elaboration in an extensive argument is not a definite way of presenting a problem of pleading to a court. The opinion at Special Term indicates that decision was made on the way the pleadings were actually framed; and on that basis the Special Term was right. If there was a concession at Special Term of the kind suggested here there is no hint of it in the opinion or in the record.

Moreover, the Van Etten brief stresses the additional point which seems to me valid enough to sustain his pleading that, *660entirely aside from responsibility for the creation of the danger, Van Etten is charged with passive negligence in failure to give warning of it.

If on the trial it were found that Van Etten had created the danger, there could be no liability over; or if the danger had been created by an employee carrying out work partly under Van Etten’s control and partly under O’Connell’s, Van Etten and O’Connell would no doubt be treated as joint tort-feasors and there would be no liability over because greater refinement of liability between such parties would not be practicable. But if O’Connell created the danger by any instrument it controlled and Van Etten was held liable because he did not correct it or give warning, there could be liability over.

In such an appeal as this we ought to read the pleadings in the same light the Special Term read them; and if we do that we should affirm.

Herlihy and Reynolds, JJ., concur with Foster, P. J., Gibson, J., concurs in the result, in a separate memorandum; Bergan, J., dissents and votes to affirm, in a memorandum.

Order reversed, with $10 costs, and motion to dismiss the third-party complaint granted.