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RUFO v. ORLANDO

309 N.Y. 345 (1955)

Emidio Rufo, Respondent, v. Anthony J. Orlando, Doing Business as A. J. Orlando Contracting Co., Appellant and Third-Party Plaintiff-Appellant. Northcrest Gardens Corp., Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Decided December 1, 1955

Attorney(s) appearing for the Case

John P. Carson and Matthew E. Lawless for appellant and third-party plaintiff-appellant.

Benjamin H. Siff and Martin I. Weiss for respondent.

I. Sidney Worthman and Harold M. Harkavy for third-party defendant-respondent.

CONWAY, Ch. J., DESMOND and FULD, JJ., concur with BURKE, J.; FROESSEL and VAN VOORHIS, JJ., dissent in part and vote to modify the judgment appealed from by reinstating the judgment rendered by the trial court in favor of the third-party plaintiff, Anthony J. Orlando, against the third-party defendant, Northcrest Gardens Corp., for the reasons stated in the dissenting opinion by Mr. Justice COHN in the Appellate Division; DYE, J., taking no part.

BURKE, J.

The plaintiff, a laborer employed by the third-party defendant, Northcrest Gardens, Inc., was injured as the result of the collapse of an embankment of an excavation dug by the defendant Orlando, while the plaintiff was working in the excavation.

Orlando had agreed orally with Northcrest to excavate the land for a foundation for stores. Orlando was required to supply the power shovel, four trucks...

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