Argued February 15, 1956 Reargued November 12, 1956
Decided November 13, 1956
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, WILLIAM S. EVANS, J.
Edward S. Dore, Edward D. Burns and Martin Fogelman for appellants.
Peter Campbell Brown, Corporation Counsel ( Fred Iscol and Seymour B. Quel of counsel), for respondent.
Mary Burke was seriously injured on a May day in 1950 as a result of a fall. While crossing Melrose Avenue, in the Borough of The Bronx, City of New York, she caught her foot in a hole under the rail of a trolley track and fell to the pavement. At that time, the tracks were not being used, buses run by the Third Avenue Transit Corporation having replaced the street cars previously operated by a predecessor company. Alleging negligent maintenance of the pavement in and about the track area, Mrs. Burke brought this action against both the City of New York and the trustees in reorganization of the transit company. The trial court — a jury having been waived — found in plaintiff's favor for $20,000 against both defendants and granted judgment over in favor of the city, on its cross complaint, against the trustees, and the Appellate Division affirmed.
On this appeal, no one challenges plaintiff's right to a judgment against both defendants for the damages she suffered, but the company does dispute the municipality's right to recover over against it. We agree with the position advanced by the city; the company is obligated to indemnify it for all claims for damage occasioned by the company's negligent maintenance of the pavement within the track area.
By a contract agreement made with the company's predecessor in November of 1940, the city permitted the contracting company to substitute buses for street cars, and, in consideration of the city's allowing it to delay removal of its tracks until the city repaved the streets, the company covenanted that it would continue "to repair the existing pavement within the said railroad area so long as its tracks remain in such part of such street" (Contract, art. 13, § 2). That agreement, as we have already intimated, rendered the company liable to the city for all damages arising from the company's failure to keep the track area in good repair. (See City of Brooklyn v. Brooklyn City R.R. Co., 47 N.Y. 475; see, also, Schuster v. Forty-second St., M. St. N. Ave. Ry. Co., 192 N.Y. 403, 409; City of Rochester v. Campbell, 123 N.Y. 405, 411.)
The term "railroad area" was defined as "the space between the tracks * * * the rails of such tracks and two feet in width outside of such tracks" (Contract, art. 13, § 1).
In the City of Brooklyn case ( supra, 47 N.Y. 475), the municipality sued the street railroad company to recover the amount of a judgment which had been obtained against it by one injured because of the presence of a hole in the line of the company's tracks. Although the company had agreed, in a bond which it had furnished the city, simply to keep the track area in repair, the court sustained the city's right to indemnification, declaring that the company, by the covenant to repair, "in effect contracts to perform that duty to the public in the place and stead of the municipality" (47 N.Y., at p. 485) and that, when someone is injured through the negligent maintenance of the track area, the company is "answerable" to the city for any damages which the latter may be called upon to pay (p. 486). And, addressing itself to one of the very arguments made by the company in this case, namely, that the city could not prevail since it was allegedly a joint wrongdoer, in pari delicto with the company, the court said that, "As between the parties, the plaintiff [city] having taken from the defendant [railroad company] a covenant to do that which, if it had been done as agreed, no harm would have befallen, had a right to rely thereon; and, though liable to third persons, are not so in pari delicto with the defendant as to be unable to sue and recover over" (pp. 486-487).
Some years later, in the course of its opinion in Schuster ( supra, 192 N.Y. 403, 409), the court pointed out that in City of Brooklyn ( supra, 47 N.Y. 475) it had held that, "where one contracts with a municipal corporation to keep any portion of its streets in repair, in consideration of a license to use them to his benefit in an especial manner, he in effect contracts to perform that duty to the public, in the place and stead of the municipality * * * so that they [the streets] may be safe for the passage of the public". And, the court continued, "the contractor is liable for any damages which naturally and proximately fall upon the [municipal] corporation in consequence of the duty not being performed." Even in the case relied upon for reversal, City of Rochester v. Campbell ( supra, 123 N.Y. 405), the court reasserted as "being too well settled to require argument or citation" the proposition that, "if the municipality has provided by contract with third persons for keeping its street in repair, and has been, through a neglect by such party to perform his contract, subjected to damages at the suit of an injured party, it may recover from such party the sum which it has thus been compelled to pay" (p. 411).
In the light of these decisions, it is clear that an agreement to keep the track area in repair, whether or no it contains explicit language of indemnity, carries with it an obligation to indemnify the city for damages resulting from the company's failure to perform its undertaking and discharge its duty. And, once the municipality's right to indemnification is recognized, it obviously matters not whether the city chooses to assert its right by a suit separately brought against the railway company, as in City of Brooklyn ( supra, 47 N.Y. 475), or, as here, by a cross complaint in the original action instituted by the injured person. (See, e.g., Dudar v. Milef Realty Corp., 258 N.Y. 415; City of Fort Worth v. Allen, 10 Tex. Civ. App. 488 .)
While, therefore, the absence of such verbiage would not be important, we note that there is a recital in the contract before us (art. 13, § 8) — that the company shall be "liable for any and all claims for damage to persons and property occasioned by * * * the presence of its tracks" in the street — which definitely sounds in indemnity.
Although we might well conclude at this point, it is not inappropriate to indicate that a somewhat different approach leads to the same result. By a further provision of the 1940 contract (art. 13, § 8), the company agreed that, after it ceased running street cars, it would "remain as fully liable for any and all claims for damage to persons and property occasioned by, or growing out of, the presence of its tracks * * * as it would have been with respect thereto prior to such cessation." (Emphasis supplied.) Defining the company's responsibility in this way, that is, in terms of liability "prior to * * * cessation" of the operation of its railway, was but another way of expressing the thought and understanding of the parties that the company was to remain liable to the city as an indemnitor.
The company's liability, during the time that it was running trolleys, was fixed by section 178 of the Railroad Law. This section imposed upon every street railway company the duty to "keep in permanent repair that portion of [the] street * * * between its tracks, the rails of its tracks, and two feet in width outside of its tracks" as long as "it shall continue to use or maintain" them. Such language is almost identical with the language contained in the bond which was before the court in City of Brooklyn v. Brooklyn City R.R. Co. ( supra, 47 N.Y. 475) and, since it was there decided that the railroad company was liable to the city for any damages resulting from the company's failure to keep the street in repair, it could hardly have been the legislative purpose to eliminate the city's previously recognized right to recover over. On the contrary, as we had occasion to observe in the later Schuster case ( supra, 192 N.Y. 403, 408), the statute was "doubtless" designed "to take the place in the future of the contracts that had theretofore been entered into * * * by municipal corporations with street railroads" and to impose upon the railroads the same liability as had previously resulted from those contracts. In other words, the legislature, by enacting the provision in question, simply wrote the contract, along with its settled construction, into the law.
In conclusion, then, the city, though under a nondelegable duty to maintain its streets in good condition, ever liable to third persons, was privileged to exact from the railway company an undertaking that it would assume that duty itself. Since the company failed to perform it, and since the damages awarded to the plaintiff were directly ascribable to such failure, the courts below very properly held that the city was entitled to judgment granting recovery over on its cross complaint.
The judgment appealed from should be affirmed, with costs.
I agree entirely with Judge FULD's analysis and his conclusions, but believe something should be said about what I regard as a basic fallacy in the opposing views of appellants.
In this branch of the law it is necessary to keep clearly in mind the distinction between tort or implied indemnity and contract or express indemnity.
"Implied indemnity" is a doctrine "based upon principles of equity" ( Trustees of Geneva v. Brush Elec. Co., 50 Hun 581, 584) evolved by the courts to ameliorate in exceptional circumstances "the rigor of the rule which forbids recourse between wrongdoers." ( Washington Gas Light Co. v. District of Columbia, 161 U.S. 316, 327.) It is applied only in situations where the relationship between joint tort-feasors to one another or to the event indicates such a difference in their respective delinquencies that one may be said to be actually or primarily, and the other only legally or secondarily, responsible for the happening of the consequent damages. The law will then imply an obligation on the part of the former to indemnify the latter. The doctrine is not necessarily limited to the traditional active-passive differentiation between joint tort-feasors. It includes also cases of neglect of a duty owing by both but which, as between the two, was to be performed by one of them. (See, for example, Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461; Phoenix Bridge Co. v. Creem, 102 App. Div. 354, affd. 185 N.Y. 580; Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, affd. 298 N.Y. 686; Wischnie v. Dorsch, 296 N.Y. 257.) In this category of "primary and secondary duties" liability to the injured person is imposed on both by reason of the nondelegable duty owed him as a member of the public or class to be protected. But this does not affect the question of indemnity as between the tort-feasors themselves. To determine that question the courts are required to take into consideration the terms of any agreement between the tort-feasors, the incidents of their business relationship and the provisions of any statute on the subject — that is to say, the fact situation as a whole. The contract between the parties is merely part of the entire factual complex from which the law may imply indemnity. Nor is it an essential prerequisite; "one who has been held legally liable for the personal neglect of another is entitled to indemnity from the latter, no matter whether contractual relations existed between them or not". ( Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, supra, p. 467.)
"Contract indemnity," on the other hand, is part of general contract law and, in this connection, is concerned with situations where a tort-feasor has sought to provide indemnification for himself by the terms of a written contract. The factual circumstances may be such that no implication of indemnity could arise. The contract nevertheless is held to accomplish the desired result provided "such intention is expressed in unequivocal terms." ( Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41.) The contract then is the sole source for recovery over against a joint tort-feasor. It is in this field that the rule has been established that indemnification against a party's own negligence will not be implied but must be expressed in clear and unequivocal terms. ( Dick v. Sunbright Steam Laundry Corp., 307 N.Y. 422; cf. Wischnie v. Dorsch, supra.)
City of Brooklyn v. Brooklyn City R.R. Co. ( 47 N.Y. 475) is clearly a case of implied indemnity. To call it a "contract case" or to refer to the bond there given as an "indemnity bond" is to honor form over substance. Nowhere in the franchise or bond was there any reference to claims for injury or damage. The railroad merely covenanted to keep the prescribed pavement area in repair. Tested by the standards of contractual indemnity the franchise and bond were wholly insufficient for a finding of indemnity. However, this court did find a basis for implied indemnity in the circumstance that the railroad's obligation of repair was coupled with the privilege granted to it to use that portion of the street for its private benefit.
No distinction in principle is discernible when that same obligation is required by a statute obviously intended to do away with the necessity of each municipality's obtaining individual covenants from street railroads. Indeed, it is presumptuous to attribute greater effectiveness to a covenant exacted by the common council of a city, which is merely an arm of the State, than to an almost identical statute enacted by the Legislature of the State. It would be anomalous to permit a city to shift by its own act ultimate responsibility for injuries occasioned by neglect in the care of its streets while denying such power to the Legislature, which "acts supremely" in the organization of cities and in the assignment of their powers and duties ( MacMullen v. City of Middletown, 187 N.Y. 37, 41) subject only to constitutional home rule provisions not here involved. Whether the duty laid upon the railroad be contractual or statutory is of no significance; it is the fact of the duty being charged to the railroad in consideration of the privilege conferred to use the city's streets which renders it liable in case of neglect to persons injured as well as by way of indemnity to the city. (See City of Rochester v. Campbell, 123 N.Y. 405, 418.)
While the city's underlying duty with regard to its streets implicit in its acceptance of a charter from the State ( Whittaker v. Village of Franklinville, 265 N.Y. 11, 15) was not affected, it is quite clear from this statute, no less than the covenant in City of Brooklyn ( supra), that the privilege conferred upon the railroad carried with it the active and primary responsibility for the care of the allotted portion.
Curiously enough, each of the arguments advanced in this case against indemnity applies with equal force to the holding in City of Brooklyn ( supra). But no one has even suggested that that decision, which is a landmark in the law of implied indemnity, is bad law.
Defendants, Trustees in reorganization of the Third Avenue Transit Corporation, a surface transit company (hereinafter Trustees) appeal as of right from that part of a judgment entered pursuant to an order of the Appellate Division, First Department, which affirmed by a divided court a judgment of the Supreme Court, Bronx County (a jury having been waived), entered on an order granting the city's motion on the cross complaint for recovery over in the sum of $20,184 which was the amount awarded to the plaintiff in her action against both defendants. The plaintiff's right to judgment is not challenged as, concededly, the trial court's findings of actionable negligence on the part of each defendant as joint tort-feasors in pari delicto are amply supported by the evidence.
Briefly, the uncontradicted proof shows that the plaintiff, while crossing Melrose Avenue, Bronx, caught her foot in a hole underneath the rail of an unused trolley track; that the hole had existed for such a long time that both the railroad and the city knew — or should have known — of its existence and that failure to repair was negligence.
The Trustees contend in this court, as they did in the courts below, that the city — as a joint wrongdoer — is entitled to no more than a prorate contribution, the right to which the Trustees have conceded by paying one half of the plaintiff's judgment (Civ. Prac. Act, § 211-a); that as a wrongdoer in pari delicto the city was barred, as a matter of law, from indemnification against its own negligence.
The law is settled that municipalities are under an original continuing and nondelegable duty to keep their highways and streets in good repair ( City of Brooklyn v. Brooklyn City R.R. Co., 47 N.Y. 475, 485; Saulsbury v. Village of Ithaca, 94 N Y 27, 29; Markey v. County of Queens, 154 N.Y. 675; City of Rochester v. Campbell, 123 N.Y. 405, 411; Binninger v. City of New York, 177 N.Y. 199, 211; Hirsch v. Schwartz Cohn, 256 N.Y. 7, 13).
However, the advent of street surface railroads required consideration of their duty owed to the municipality for their use of its streets, as well as the duty owed third persons. In the early case of Brooklyn v. Brooklyn City R.R. Co. ( supra), we applied the usual rules of liability for breach of contract to hold that the railroad was under an obligation to reimburse the city for loss sustained in paying a judgment recovered in a common-law action by a third person who was injured when thrown into a hole within the line of defendant's railway tracks. The railroad was operating its tracks in the street pursuant to a franchise which provided, among other things, that it (the railroad) would keep the pavement of the street "in thorough repair within the tracks, and three feet on each side thereof, with the best water-stone, under the direction of such competent authority as the common council might designate." In addition, faithful performance of the obligation was conditioned by an indemnity bond. The city sued the railroad on both the contract and this bond. The railroad defended on two grounds, first, that the requirement to make the repairs "under direction of a designated authority" was a condition precedent to liability, which we rejected with the comment that the permission granted to the railroad to use the street for a particular purpose and in a particular manner was for the railroad's own benefit, in consideration of which it agreed to keep the area of the tracks in repair and thus do the duty which the city owed the public, failing which, it was answerable in damages to the city for the amount awarded to the injured third party. We also rejected the railroad's defense based on the theory that the city, being a joint wrongdoer, was barred from recovery over by saying (pp. 486-487): "As between these parties, the plaintiff having taken from the defendant a covenant to do that which, if it had been done as agreed, no harm would have befallen, had a right to rely thereon; and, though liable to third persons, are not so in pari delicto with the defendant as to be unable to sue and recover over." Relying heavily on this contract case, the Trial Judge took the view that the sufficiency of the contract of November 9, 1940 between the city and the Trustees' predecessor, permitting a change in the method of surface transportation from trolley cars to buses and the consent of 1892 covering street railway operation on Melrose Avenue which it supplemented, implicitly obligated the Trustees to indemnify the city for any and all losses sustained by its failure to keep the track area in the public streets — a space between the rails of the tracks and two feet outside the tracks — pending removal of the rails, in good condition.
"ARTICLE THIRTEEN * * *
"Section 2. Anything in any statute, law, franchise, consent, local law, ordinance or requirement of any kind whatsoever to the contrary notwithstanding, when and as all street railway operation on any part of a street shall cease and bus operation superseding such street railway operation thereon shall be effected, to the extent and as provided in the Bus Agreements, then and from thenceforth the Railway Companies, and each of them, and their and each of their successors and assigns, shall not be under any duty, liability or obligation of any kind whatsoever to pave or repave or have or keep in repair any part of the railroad area in such part of such street, except to repair the existing pavement within the said railroad area so long as its tracks remain in such part of such street. * * *
"Section 8. Subsequent to the cessation of the operation of street surface railway on any street, and until removal of Company Structures as hereinabove required, and while any property, title to which is in any Railway Company, remains in the street each Railway Company shall remain as fully liable for any and all claims for damage to persons and property occasioned by, or growing out of, the presence of its tracks and track structures and property in any street as it would have been with respect thereto prior to such cessation."
Such reliance was patently a misapplication of the contract. All of the judges in the court below agreed — and the parties do not now challenge — that the within contract merely recognized the Trustees as successors in interest and subject to the obligations borne by its predecessor prior to motorization as fixed by section 178 of the Railroad Law (as amd. by L. 1921, ch. 433; former Railroad Law, § 98, as amd. by L. 1892, ch. 676, without substantial change). In other words, we are not now dealing with a breach of contract obligation but, rather, with whether the statute creates such an obligation as to afford indemnity in favor of a joint wrongdoer. Strangely enough, since section 178 and its predecessor statutes of like import were enacted, the precise question here presented, indemnification of a city in the status of an adjudicated wrongdoer, has not heretofore been considered in this court, although there have been many situations where we have dealt with other aspects of the statute, such as liability for pavement ( Conway v. City of Rochester, 157 N.Y. 33) and repavement ( City of New York v. Whitridge, 227 N.Y. 180), which liability may not be waived even though consideration therefor be expressed ( Conway v. City of Rochester, supra; Brooklyn, Queens Co. S.R.R. Co. v. City of New York, 229 N.Y. 260; City of New York v. Dry Dock, E.B. B.R.R. Co., 251 N.Y. 583, cert. denied 280 U.S. 603; City of New York v. Brooklyn, Q. Co. S.R.R. Co., 213 N.Y. 634) and that when the railroad is the sole defendant in an action by an injured third party, he may recover against the railroad ( McCarthy v. Brooklyn Queens Tr. Corp., 254 App. Div. 757, affd. 279 N.Y. 737).
"§ 178. Repair of streets; rate of speed; removal of ice and snow.
"Every street surface railroad corporation, so long as it shall continue to use or maintain any of its tracks in any street, avenue or public place or in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe; but nothing contained in this section shall require any street railroad corporation to make pavements or repairs over openings made in the streets by any person, municipality or corporation other than such street railroad corporation, for any purpose other than the pavement or repavement of the street. In case of the neglect of any corporation to make pavements or repairs after the expiration of twenty days' notice to do so, the local authorities may make the same at the expense of such corporation, and such authorities may make such reasonable regulations and ordinances as to the rate of speed, mode and use of tracks, and removal of ice and snow, as the interest or convenience of the public may require. A corporation whose agents or servants wilfully or negligently violate such an ordinance or regulation shall be liable to such city or village for a penalty not exceeding five hundred dollars, to be specified in such ordinance or regulation."
The city would have us construe section 178, as did a majority in the court below, as mandating complete indemnification, while the wording of the statute nowhere so provides in "clear and unequivocal terms". It is contended that such a construction is compelled when the rationale of Trustees of Vil. of Canandaigua v. Foster ( 156 N.Y. 354) and Schuster v. Forty-second St., M. St. N. Ave. Ry. Co. ( 192 N.Y. 403) is analogized and applied. In our view, this conclusion is not warranted. The circumstances surrounding each of those cases furnish a clear distinction. For instance, in Foster ( supra), an abutting store owner had constructed a cellar grate in the sidewalk which fell into disrepair. A pedestrian was injured and sued the village in tort for breach of its common-law duty to provide safe sidewalks and had a judgment which the village paid. The village then sued the owner for reimbursement and had a judgment which we affirmed on the theory that the store owner, having erected the grates, was under the duty — while he remained in the exclusive possession, use and control thereof — to keep them in suitable and safe condition for the public to walk over. In other words, the "use" doctrine was employed to apply the common-law theory relating to active and passive tort-feasance to create indemnification for loss incurred through primary or active fault as opposed to a secondary or passive liability created by law. Our situation is obviously quite different. Here we deal with the statutory liability of a transit company incident to the operation of its motorized buses in and along the public streets. In order to facilitate the furnishing of this necessary public transportation, a contract was entered into permitting a change in the type of service from trolley cars, formerly used by the company, to buses. In making this change-over to a more usable and convenient means of transportation without unnecessary delay and expense, the contract provided, among other things, for the maintenance of the track area until removal of the tracks "as it would have been with respect thereto prior to such cessation" (§ 8; n. 1, supra, p. 100). All judges in the court below have held — and this is not challenged on appeal — that liability is to be found in section 178 of the Railroad Law. That section, as we have seen, in no way relieves the city of its primary, continuing and nondelegable duty of inspection and repair in the first instance; it simply creates a corresponding duty on the railroad. According to the evidence, the hole complained of was in the pavement underneath the unused rail, so there is no claim that the rail was defective. The hole had existed for a long enough period of time to charge the city with notice of its existence, yet the city had done nothing toward repairing, nor had it served notice upon the transit company. Under such circumstances, the city may not escape the consequences of its negligence but, as a joint tort-feasor, must bear its share of the burden. As Justice CALLAHAN so aptly stated: "The statute never intended to eliminate the municipality's duty to the public in the exercise of vigilance." ( 285 App. Div. 686.)
In contract cases it has long been the rule that indemnification against a party's own negligence will not be implied but must be expressed in clear and unequivocal terms ( Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36; cf. Schwartz v. Merola Bros. Constr. Corp., 290 N.Y. 145) and indemnification may not be implied ( Dick v. Sunbright Steam Laundry Corp., 307 N.Y. 422).
By the same token, the courts are reluctant to imply terms, or change existing laws, when dealing with problems of statutory construction. This is particularly so when the statute is designed or intended to effect a radical departure from a firmly established public policy. As a leading text writer has expressed it: "Statutes of such nature are not to be construed to modify or abrogate the common law any further than is clearly expressed or justly implied from the language used. When presented with the inquiry whether a rule of the common law has in fact been changed by a statute, we approach that inquiry with the presumption that no such change was intended." (McCaffrey on Statutory Construction, § 46, Statutes in Derogation of Common Law, p. 92) and as we ourselves have said, per PECKHAM, J.: "the rule itself is too securely and firmly established and grounded in our jurisprudence to be altered other than by legislative interference". ( Fitzgerald v. Quann, 109 N.Y. 441, 445.) Nowhere have we said that section 178 has in any way changed the common-law duty of a municipality to maintain its streets safely. By the same token, a careful reading of the section reveals no language changing the ancient common-law doctrine that as between tort-feasors in pari delicto, there is no indemnity — merely contribution (Civ. Prac. Act, § 211-a; McFall v. Compagnie Maritime Belge, 304 N.Y. 314; Fox v. Western New York Motor Lines, 257 N.Y. 305; Smith v. 167th St. Walton Ave. Corp., 264 App. Div. 570).
Here the city and the trustees breached the same duty owed to the plaintiff. Each has been adjudged derelict for failure to inspect and repair. A careful reading of the statute reveals no language which may be construed as authorizing indemnification of the city for its joint wrongdoing. To allow the city full indemnification against the railroad, though the city admits that it was negligent, would do violence to the well-established rule that indemnity is only created by clear and unequivocal language. To read section 178 as mandating indemnification under the circumstances of this case is not justified by the language used. If the Legislature intended placing such a burden upon the surface railroad in respect to indemnifying the city for its adjudicated wrongdoing, it should have said so. Such a change is for the Legislature and not for the courts.
Before closing, a word should be said about Schuster v. Forty-second St., M. St. N. Ave. Ry. Co. ( 192 N.Y. 403, supra), which the city urges as authority to sustain the judgment below. There the plaintiff was awarded damages for injuries suffered when he stepped into a hole in the street within the track area. Only the railway was sued. It defended on the ground that it was not primarily liable within the provisions of the statute giving the city the right to make repairs after expiration of 20 days' notice to do so. We held this was of no avail to the railroad, and that it in no way relieved the railroad of its original duty to inspect and repair and its liability to a third party when it failed to do so. The city was not a party, and no issue of indemnity was presented or considered. Here we deal only with indemnity — and that as between wrongdoers.
The judgment appealed from should be reversed, with costs.
I fully concur in the opinion of Judge DYE. There can be no dispute about the fact that the duty to repair is imposed by law both upon the city and the trustees. In the case of the city, it is the common law; in the case of the trustees, it is section 178 of the Railroad Law. Such an obligation to repair is not synonymous with an obligation to indemnify.
City of Brooklyn v. Brooklyn City R.R. Co. ( 47 N.Y. 475) is not apt, for in that case the company had given a bond and a contract to the city, by which it "in effect contracts to perform that duty to the public in the place and stead of the municipality" (p. 485). Nor is Schuster v. Forty-second St., M. St. N. Ave. Ry. Co. ( 192 N.Y. 403), for the reasons stated by Judge DYE.
There is no bond or contractual obligation in this case. Section 2 of article 13 of the November 9, 1940 contract is not, as asserted in the majority opinion, a covenant to repair; on the contrary, it expressly relieves defendant, "Anything in any statute, law, franchise, consent, local law, ordinance or requirement of any kind whatsoever to the contrary notwithstanding", of "any duty, liability or obligation of any kind whatsoever" to pave or repair, "except to repair the existing pavement within the said railroad area so long as its tracks remain in such part of such street" — a duty imposed solely under section 178 of the Railroad Law. Moreover, it is only that obligation which remains under section 8 of said contract.
I see no reason why the law of indemnity and contribution between joint tort-feasors should be applied differently here than in any other case. As we said in City of Rochester v. Campbell ( 123 N.Y. 405, 420), "Any other conclusion than that reached by us would, we think, be most unfortunate, as it would tend to relax the vigilance of municipal corporations in the performance of their duties in respect to the repair of streets and highways".
The city argues that the sagging here was due to the deterioration of the wooden ties sunk in the highway, but apparently overlooks the fact that under the provisions of section 6 of article 13 of its 1940 contract, title to those ties was vested in the city immediately upon the change-over from street railway operation to buses, which took place long before plaintiff sustained her injuries.
In the face of this argument, how can the city contend that the trustees are primarily liable?
CONWAY, Ch. J., and DESMOND, J., concur with FULD, J.; EDER, J., concurs in a separate opinion; DYE, J., dissents in an opinion in which FROESSEL and VAN VOORHIS, JJ., concur; FROESSEL, J., dissents in a separate opinion in which DYE and VAN VOORHIS, JJ., concur; BURKE, J., taking no part.
Designated pursuant to section 5 of article VI of the State Constitution in place of BURKE, J., disqualified.