Opinion
November 6, 1914.
Madison G. Gonterman, for the appellant.
Abraham Oberstein, for the respondent.
The defendant, wishing to clear the ground for four-tracking its road in New Haven, made a contract with the firm of Blakeslee Sons to remove a number of buildings.
By the contract defendant in form agreed to sell to Blakeslee Sons the specified buildings with the proviso that said buildings were not to become the property of said Blakeslee Sons until after notice of removal had been given to them. The buildings were to be taken down from time to time on notice from defendant. Blakeslee Sons thereupon made a contract with Cohen Gingold, by which they undertook to sell the buildings to said Cohen Gingold, who agreed to remove or destroy them in accordance with the plans and specifications of defendant's contract with Blakeslee Son, which were attached to the latter's contract with Cohen Gingold. Cohen Gingold thereupon employed plaintiff to perform this work under the contract, and in consideration thereof and as payment for his services transferred to him all their right, title and interest in and to the buildings to be removed and the materials. Defendant was not a party to either of these last-mentioned contracts, and never consented to them. About May first, or a few days earlier, defendant notified Blakeslee Son to remove the buildings in question, and he in turn notified plaintiff, who began to work, but was so slow that by May sixteenth the work was only partially done.
The evidence is that ten days would have been ample time within which to complete the work. On May sixteenth, in prosecuting the work of preparing the ground for laying its tracks, defendant demolished a part of the building which had then been only partially torn down. Later plaintiff completed the work.
We find it difficult to determine upon what theory plaintiff has recovered a judgment. He conceded that no contractual relation existed between himself and defendant and that he has no cause of action on contract. He claims, somewhat vaguely, to be entitled to recover as for a tort; but that presupposes some duty which defendant owed to him. We can see none. His position was merely that of a workman employed by defendant's contractor to do the work contracted for. Short of the right to be protected from bodily injury, as to which there is no claim, we see no duty which defendant owed to plaintiff for the breach of which an action will lie.
It follows that the judgment and order appealed from must be reversed and the complaint dismissed, with costs to the defendant in this court and in the court below.
INGRAHAM, P.J., CLARKE, DOWLING and HOTCHKISS, JJ., concurred.
Judgment and order reversed and complaint dismissed, with costs in this court and in the court below. Order to be settled on notice.