In Rosenbaum, supra, the court held that Tracy Refrigeration Company, which had a contract with plaintiff's landlord to maintain plaintiff's refrigerator, had a duty to plaintiffs to act with care.Summary of this case from Morse/Diesel, Inc. v. Trinity Industries, Inc.
276 A.D. 167 93 N.Y.S.2d 209 ROSENBAUM et al. v. BRANSTER REALTY CORPORATION et al. Supreme Court of New York, First Department December 20, 1949
Action by Adele Rosenbaum and Morris Rosenbaum, her husband, against the Branster Realty Corporation impleaded with Harry Lazarian and Nicholo DiMaria, doing business as Tracy Refrigeration Service where plaintiffs occupying an apartment owned by the corporate defendant sought to recover for personal injuries sustained by the named plaintiff and for loss of services and medical expenses occasioned by her husband when she was overcome by fumes escaping from a refrigerator located in their apartment.
From an order entered in the Supreme Court, Bronx County, denying the motion of the Tracy Refrigeration Service to dismiss the complaint as to them on the ground that it was insufficient in law such defendants appealed.
The Appellate Division, Glennon, J., reversed the order holding that inasmuch as no privity of contract existed between the plaintiffs and the appellants, the latter's alleged breach of their contract with the owner did not violate any duty owing to plaintiffs and plaintiffs could not recover.
In action by tenants in an apartment for personal injury sustained by wife when she was overcome by fumes escaping from refrigerator located in the apartment which defendants as a refrigeration service had contracted with the owner to maintain in good working condition, where no privity of contract existed between plaintiffs and defendants, complaint alleging defendants' breach of contract with owner and seeking to impose liability upon defendants based upon their alleged negligence in permitting refrigerator to become and remain in a defective condition and failure to restore to safe working order within a reasonable time after notice, failed to state a cause of action.
Benjamin Burstein, White Plains, for appellants.
Samuel J. Sussman, Brooklyn, of counsel (Herman E. Hoberman, Brooklyn, with him on the brief; Samuel Harnick, New York City, attorney), for respondents.
November term, 1949, before PECK, P. J., and GLENNON, CALLAHAN, VAN VOORHIS, and SHIENTAG, JJ.
The individual defendants, doing business as Tracy Refrigeration Service, seek the dismissal of the complaint in this action on the ground that it does not state facts sufficient to constitute a cause of action as against them.
Plaintiffs are husband and wife, who at the time in question occupied an apartment in a multiple dwelling owned by the corporate defendant. They bring this action to recover damages for personal injuries sustained by plaintiff Adele Rosenbaum, and for the loss of services and medical expenses occasioned the husband when she was overcome by sulphur dioxide fumes escaping from the refrigerator located in their apartment.
The complaint alleges the appellant's breach of a contract with the owner wherein they had agreed to maintain the refrigerator in question in good working condition. The liability of appellants is predicated upon their alleged negligence in permitting the refrigerator to become and remain in a dangerous and defective condition and in failing to restore it to safe working order within a reasonable time after notice.
Negligent conduct becomes actionable only when it violates some specific duty owing to the person complaining, Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253; Cohen v. Koster, 133 A.D. 570, 118 N.Y.S. 142. The failure to perform a contract obligation is never a tort unless it is also a violation of a legal duty. Rich v. New York Cent. & H. River R. Co., 87 N.Y. 382. Where a person contracts to do certain work he is charged with the common law duty of exercising reasonable care and skill in the performance of the work required to be done by the contract, Cox v. Mason, 89 A.D. 219, 85 N.Y.S. 973. It is the breach of the duty imposed by law and not of the contract obligation which constitutes the tort. While such duty may arise out of contract, it is a separate and distinct undertaking so that a breach of one will not necessarily imply a breach of the other, although the same conduct may at times constitute a tort as well as a breach of contract. In the absence of at least an attempt to perform the contract there can be no violation of the legal duty.
In the case at bar no privity of contract exists between plaintiffs and appellants and the latter's alleged breach of their contract with the owner did not violate any duty owing to plaintiffs. Fitzgerald v. Greenbaum, Sup., 56 N.Y.S.2d 262; affirmed 270 A.D. 1026, 63 N.Y.S.2d 80. The duty of reasonable care in the performance of a contract is not always owed solely to the person with whom the contract is made or those claiming through him, it may inure to the benefit of others. Doyle v. Chatham & Phenix National Bank, 253 N.Y. 369, 171 N.E. 574, 71 A.L.R. 1405; McGlone v. William Angus, Inc., 248 N.Y. 197, 161 N.E. 469; International Products Co. v. Erie R. R. Co., 244 N.Y. 331, 155 N.E. 662, 56 A.L.R. 1377; Rosebrock v. General Electric Co., 236 N.Y. 227, 140 N.E. 571; Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 Ann.Cas.1916C, 440. By virtue of the nature of the contract between appellants and the owner, the legal duty of reasonably careful and skillful performance imposed upon appellants inured to the benefit of plaintiffs. Had appellants failed to comply with those requirements they might be held answerable to plaintiffs for any damages resulting to them from such a breach of duty, Beinhocker v. Barnes Development Corp., 296 N.Y. 925, 73 N.E.2d 41. Plaintiffs' claim however is based upon a complete failure of performance of the contract obligation and not negligent performance. They seek to transform a mere breach of contract into actionable negligence which, as we have seen, may not be done even where privity of contract exists.
The order appealed from should therefore be reversed with $20 costs and disbursements to the appellants and their motion to dismiss the complaint granted with costs.
Order unanimously reversed with $20 costs and disbursements to the appellants and the motion granted with costs.