Opinion
March 17, 1960 Republished
Judgment in favor of plaintiff against defendants modified, on the law and on the facts, to the extent of dismissing the complaint against the subcontractor defendant Central Cement Finishing Co., Inc., and the judgment is otherwise affirmed, with costs in favor of plaintiff-respondent against defendant-appellant John Lowry, Inc. and with costs in favor of defendant-appellant Central Cement Finishing Co., Inc. against plaintiff-respondent. On this record it is undisputed that the subcontractor had completed its work at least four days before the accident and that its work had been accepted by the general contractor. Any obligation to guard the protruding rods then fell upon the general contractor since at the time the subcontractor left the work the cement had not yet hardened sufficiently and any bending of the rods at such time was not feasible. It was also undisputed that between the general contractor and the subcontractor the cement company's work required that it leave the rods protruding and upright. It was also undisputed that between them the time interval which would follow before further structure would be placed upon the concrete pad was entirely within the discretion and knowledge of the general contractor. Consequently, there was no evidence to show that the subcontractor was guilty of any fault.
Concur — Botein, P.J., Breitel, Rabin and Stevens, JJ.; McNally, J., dissents in part and concurs in part in opinion. Settle order.