Pipitone v. Standard Fruit & Steamship Co.

270 A.D. 844, 60 N.Y.S.2d 465, 1946 N.Y. App. Div. LEXIS 4261

Opinion

Action to recover damages for personal injuries sustained as the result of the alleged negligence of defendant in the discharge of its duty of inspection set forth in its agreement with the United States of America, whereby the latter, as owner, assigned a ship to defendant as general agent. Plaintiff, present on this ship as an employee of a repair company, was struck by a falling boom. After rendition of a jury verdict for plaintiff, the complaint was dismissed on motion of defendant, made at the close of the plaintiff’s case and renewed at the close of the entire case, determination of which had theretofore been reserved. Order dismissing the complaint and setting aside a verdict in plaintiff’s favor, and the judgment entered thereon, reversed on the law and a new trial granted, with costs to abide the event. Breach of duty of defendant to plaintiff, consisting, in effect, of furnishing a defective bolt (.Pedersen v. Stockard 8. 8. Corp., 268 App. Div. 992) would constitute actionable misfeasance rather than nonfeasance. (Mollino v. Ogden & Clarkson Corp., 243 N. Y. 450 -,°Moch Co. v. Rensselaer Water Co., 247 N. Y. 160, 167; Ellis v. McNaughton, 76 Mich. 237; Mechem on Agency [1st ed.], § 572; 2 Am. Jur., Agency, § 325.) The court has considered the questions of fact and has decided that in any event it would grant a new trial since the finding implicit in the verdict that the accident was caused by the breaking of a defective bolt is against the weight of the credible evidence. Lewis, P. J., Hagarty, Carswell, Adel and Nolan, JJ., concur.