28 A.D.2d 669 (1967)

Emma Statella, as Administratrix of The Estate of Fiore M. Statella, Deceased, Respondent, v. Robert Chuckrow Construction Co., Inc., Respondent-Appellant, and Wheeling Corrugated Co. et al., Appellants-Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

June 20, 1967

Judgment in favor of plaintiff as against the defendant, the Wheeling Corrugated Co., unanimously reversed, on the law, the verdict rendered against it vacated, and complaint as against said defendant dismissed; judgment in favor of the plaintiff as against the defendants Robert Chuckrow Construction Co., Inc., and Ervin E. Helms, Inc., in the sum of $275,000 for wrongful death, with interest, and $15,000 for conscious pain and suffering, with interest, unanimously reversed, on the law and on the facts and in the exercise of discretion as to said defendants and verdicts vacated and a new trial granted, unless the plaintiff, within 20 days after entry of order hereon, stipulates to accept the sum of $200,000 for wrongful death, with interest from April 29, 1965, and the sum of $5,000 for conscious pain and suffering, with interest from April 29, 1965, in lieu of the awards by verdict, in which event the judgment is modified to that extent, and, as so modified, affirmed; in the event the plaintiff so stipulates, the respective judgments in favor of defendants upon their respective cross complaints against codefendants are modified accordingly, on the law and the facts, as to amounts but otherwise affirmed; judgment in favor of defendant the Wheeling Corrugated Co. on cross complaint against the defendant Ervin E. Helms, Inc., shall specifically provide that there shall be a recovery over by the former against the latter of the sums recovered against Wheeling Corrugated Co. under the cross complaint of the defendant Robert Chuckrow Construction Co., Inc., in the event the plaintiff does not stipulate as aforesaid, then the respective judgments in favor of defendants upon respective cross complaints against codefendants are reversed and vacated, on the law and the facts, and a new trial granted thereon, and the aforesaid directions and determinations are without costs or disbursements to any party on this appeal as against any other party. The defendant, the Wheeling Corrugated Co. (Wheeling), as a subcontractor to the general contractor entered into an agreement with Robert Chuckrow Construction Co., Inc. (Chuckrow) to install the metal floor decks throughout the building. Thereafter, Wheeling entered into a sub-subcontract with defendant Ervin E. Helms, Inc. (Helms) to perform all of the work which was to be performed under its subcontract with Chuckrow. Wheeling did not enter upon the construction site and did not retain or exercise any control over the manner and means of doing the work which was the subject of its subcontract with Chuckrow. Of course, plaintiff cannot recover on the basis of a breach of the contractual provisions in such subcontract and Wheeling is not liable for the acts and omissions of the employees of the independent subcontractor Helms. We conclude that, as a matter of law, there was a failure to establish that Wheeling assumed any duty, nondelegable or otherwise, as to the plaintiff. Under the judgment as herein modified, a recovery will be had in favor of Chuckrow upon its cross complaint against Wheeling. We conclude, however, that Chuckrow is not entitled, as a third-party beneficiary under the Wheeling-Helms sub-subcontract or otherwise, to a recovery over as against Helms. But the provisions of such sub-subcontract are such that Helms is obligated to indemnify Wheeling to the extent of any recovery against it by Chuckrow. In this wrongful death action, the jury verdicts for wrongful death and conscious pain and suffering are grossly excessive and, on the record, the reduced amounts heretofore mentioned represent adequate and proper recoveries on the plaintiff's respective causes of action. Although the defendant Chuckrow did not appeal from the judgment rendered against it in favor of plaintiff, Chuckrow is here on the appeals concerning the determination of its cross complaints and we conclude that the appeals of the codefendants bringing up for review on the merits the question of excessiveness of the verdicts inure also to the benefit of Chuckrow. The verdicts and judgment, insofar as they fix the amounts of recoveries, are in joint form against the several defendants. They occupy the same position and have a common standing with respect to the quantum of plaintiff's recovery. The common-law rule was that verdict or judgment against several tort-feasors might not be reversed as to some and enforced as to others, and that a new trial might not be granted as to some and denied as to others. The judgment was regarded as an entirety which must be affirmed or reversed on appeal as to all or as to none. Today it is quite generally held that a judgment against multiple tort-feasors may be reversed as to one such defendant without affecting the judgments as to others. In the application of the modern rule, nevertheless, courts will not enter such a partial reversal where substantial justice requires a reversal as to all defendants, as where it appears there is a right to contribution or indemnity among the codefendants. (Rome Cable Corp. v. Tanney, 21 A.D.2d 342; Greenberg v. Stanley, 30 N.J. 485, 504-505; Ferry v. Settle, 6 N.J. 262, 265-266; 5 Am. Jur. 2d, Appeal and Error, §§ 949, 950, 951; CPLR 5522.) Fundamental justice requires, moreover, that judicial discretion be exercised and a new trial ordered as to all defendants unless plaintiff stipulates to reduce the award as to all defendants. Settle order on notice.


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