Opinion
March 30, 1954.
Present — Dore, J.P., Cohn, Callahan, Breitel and Botein, JJ.
There was proof that the premises were occupied by an electrical supply company as well as by the third-party defendant. This was sufficient to sustain a finding of multiple occupancy within the meaning of subdivision 2 of section 315 Lab. of the Labor Law. Defendant was, therefore, the owner of a "tenant-factory building" and owed plaintiffs a nondelegable statutory duty to safely maintain the elevator therein (Labor Law, § 316, subd. 2). Defendant, however, was entitled to judgment over on the third-party complaint against its tenant, the party in possession and control of the premises pursuant to a lease and primarily responsible for their maintenance and repair ( Wischnie v. Dorsch, 296 N.Y. 257). By virtue of the lease the owner had transferred, as between them, control of the premises, including the elevator. It was the tenant's agent, the Maintenance Company, which made the faulty inspection of the elevator that resulted in the operation of the elevator with a defective drum. Thus, as between the owner and the tenant, the tenant was responsible for active negligence, while the owner's role was wholly passive and resulted in liability only by virtue of the statute. Judgment, insofar as it dismissed the third-party complaint, unanimously reversed and judgment granted thereon in favor of the third-party plaintiff against the third-party defendant for the amount of the judgment in favor of plaintiffs, and otherwise affirmed, with costs and disbursements in favor of plaintiffs against defendants and in favor of the third-party plaintiff against the third-party defendant. Settle order on notice.