Opinion
December 27, 1961
In a negligence action to recover damages for personal injuries, the individual defendant Koppel, the corporate defendant J. Sweet G. Levine, Inc., and the corporate defendant, John Melen, Inc., being respectively the owner, the general contractor and the subcontractor, appeal as follows from an amended judgment of the Supreme Court, Queens County, entered January 19, 1961, upon the jury's verdict after trial: Defendant Koppel and defendant Sweet Levine corporation appeal from so much of the judgment as is in favor of plaintiff for $22,246.75 and against them, and as is in favor of defendant Melen corporation dismissing their (defendant Koppel's and defendant Sweet Levine corporation's) cross complaint against it. Defendant Melen corporation appeals from so much of the judgment as is in favor of plaintiff for said sum and against it. Judgment reversed on the law and new trial granted, with costs to abide the event. In our opinion, no proper verdict was actually rendered by the jury. Moreover, the circumstances surrounding the polling of the jury, the procedure by which it was done, and the jurors' obvious confusion as to the verdict, were such that a new trial should be had in the interests of justice. In view of this determination, we reach no other questions.
Nolan, P.J., Beldock, Ughetta and Brennan, JJ., concur;
This accident concededly occurred in a factory building, and the plaintiff was a factory worker therein. Under the statute relating to this type of structure and to the workers (like plaintiff) encompassed thereby (Labor Law, §§ 241, 290, 315), "owners and contractors" are liable in the same degree for failure to observe compliance with the safety rules applicable in such premises ( Vallina v. Wright Kremers, 7 A.D.2d 101, 108-109). The Trial Judge's instructions to the jury were therefore correctly given to the effect that as to liability all three defendants (appellants) were to be considered on a parity with respect to plaintiff. In my opinion, the jury's verdict could be properly construed as a vote of 10 to 2 in favor of a finding of $22,000 in damages for the plaintiff against one defendant. Hence, in conformity with his charge, the Trial Judge properly ruled that such verdict was to be applied as against all defendants. Since all defendants were chargeable as joint tort-feasors, the dismissal of the cross complaint as to defendant John Melen, Inc., was proper.