Trumpbour v. Arthur A. Johnson Corp.

250 A.D. 856, 294 N.Y.S. 575, 1937 N.Y. App. Div. LEXIS 9414

Opinion

Action to recover damages for injury to plaintiffs’ house as the result of blasting operations conducted by defendant in connection with its contract with the State of New York for the construction of part of a parkway extension. The contract contained a provision that defendant should bear all damages to property resulting from the work of construction. Order of the Appellate Term, affirming a judgment of the Municipal Court of the City of New York, Borough of Queens, in favor of plaintiffs affirmed, with costs. No opinion. Lazansky, P. J., Johnston and Close, JJ., concur; Adel and Taylor, JJ., dissent and vote to reverse the order of the Appellate Tern and the judgment of the Municipal Court and to dismiss the complaint, with the following memorandum: The contract in suit was not made for the benefit of a third person but for the purpose of holding the State harmless. (United States v. Massachusetts Bonding & Ins. Co., 18 F. [2d] 203.) The contracts in Schnaier v. Bradley Contracting Co. (181 App. Div. 538); Wilson v. Costich Co., Inc. (231 id. 346; afld., 256 N. Y. 629), and similar cases, contained express provisions creating the duty of the contractors to make repairs; but fair and reasonable construction will not imply such a covenant in the contract in suit.