Opinion
February 13, 1962
In an action against the City of New York by an infant to recover damages for personal injuries and by her mother to recover damages for loss of services and medical expenses, in which the defendant city served a third-party complaint against Marcam Construction Co. (whose correct name is Marcam Contracting Co., Inc.), as third-party defendant, the plaintiffs, by permission of this court, appeal from an order of the Appellate Term of the Supreme Court, dated June 29, 1961, which: (a) reversed a judgment of the City Court of the City of New York, Queens County, entered June 14, 1960 after a jury trial (as resettled by an order of said court, dated September 14, 1960), in favor of plaintiffs against the defendant city and in favor of the city on its third-party complaint against the third-party defendant Marcam; and which (2) directed a new trial as to all parties. Only the plaintiffs have appealed to this court. In view of the granting of the new trial by the Appellate Term, the plaintiffs as appellants have filed a stipulation for judgment absolute, pursuant to the rules of this court (Appellate Division — Second Department Rules, rule XXVI). Order of the Appellate Term insofar as it relates to plaintiffs and their action against the defendant city, reversed on the law and the facts, with costs to plaintiffs in this court and in the Appellate Term against the city; judgment of the City Court, as resettled, reinstated insofar as such judgment is in favor of plaintiffs against defendant city; and a third-party action as between the city and Marcam severed and remitted to the City Court for further proceedings not inconsistent herewith and with the order of the Appellate Term insofar as it relates to such third-party action. The infant plaintiff was injured while riding in a bus that was caused to lurch when the street suddenly collapsed under the bus, creating a hole about four feet wide and two or three feet deep. In the vicinity of the accident a storm sewer was being constructed by Marcam as general contractor for the city. The collapse occurred in a portion of the street which Marcam had excavated and in which it had laid sewer pipe. Marcam back filled the excavation, which was repaved by its subcontractor at least two days before the accident. The City of New York is under a non-delegable duty to maintain its streets in reasonably safe and good condition ( Burke v. City of New York, 2 N.Y.2d 90, 95). When repairing a street the city remains liable for dangers inherent in the work to be performed even though it employed an independent contractor to do such work ( Storrs v. City of Utica, 17 N.Y. 104; Satre v. City of New York, 265 App. Div. 263, 264). Notice is not essential where a nondelegable duty is violated in doing work authorized by the city ( Satre v. City of New York, supra). Here the danger of the pavement collapsing because of improper filling or paving was inherent in the work to be performed by Marcam pursuant to its contract with the city. Under these circumstances, notice to the city need not be proved. The city cannot be considered in pari delicto with Marcam since the construction work was performed by Marcam or its subcontractor, and not by the city. Hence the judgment over in favor of the city against Marcam was proper ( Schwartz v. Merola Bros. Constr. Corp., 290 N.Y. 145, 155). However, since the city did not appeal to this court from the order of the Appellate Term and did not file a stipulation for judgment absolute, we cannot reinstate the judgment over in its favor against Marcam but must remit the third-party action to the City Court for appropriate action (cf. Williams v. Western Union Tel. Co., 93 N.Y. 162, 193-195). Beldock, P.J., Christ, Hill, Rabin and Hopkins, JJ., concur.