SCOTT, J.:
The plaintiffs appeal from an interlocutory judgment overruling their demurrer to a counterclaim interposed by the defendants.
The plaintiffs are architects, and sue for a balance of fees alleged to be due them for services in preparing plans and specifications for and superintending the construction of a building for defendants, the owners thereof. The counterclaim to which plaintiffs have demurred is based upon an allegation of plaintiffs' negligence in the performance of the duties which they assumed to perform for defendants, and raises a question as to the extent and nature of such duties, which seems to be one of first impression, since neither of the learned counsel who argued the appeal, nor the learned justice who overruled the demurrer, have referred us to any case precisely in point. Nor have we ourselves been able to find any such case. Briefly stated, the allegations of the counterclaim are that plaintiffs entered into a contract with defendants wherein and whereby they (the plaintiffs) "promised and agreed to act as architects for them (the defendants) and to make all necessary plans, details and specifications, and also to superintend the construction and erection of the said building, and of the contractors and laborers engaged in constructing the said building, and to use and employ therein their best skill and endeavor." This is the extent of the obligations assumed by the plaintiffs as set forth in the counterclaim.
The negligence imputed to plaintiffs is this: That in constructing said building, elevators, elevating machines and hoisting apparatus were used for the purpose of lifting material, and were operated in shafts and openings, as plaintiffs knew; that plaintiffs negligently suffered and permitted the contractors under their supervision and control and engaged in the construction and erection of said building to carry on and perform the work contrary to the laws of the State of New York in a negligent and careless manner, in that they suffered and permitted the openings and shafts through which the hoisting machines were operated to be maintained and used and to remain entirely unguarded and without barrier, fence or inclosure. It is then alleged that in consequence of the lack of barriers, one George Henry Ward fell through one of the shafts or openings and was killed, and that his administrator brought suit against defendants and recovered a large judgment which defendants will be obliged to pay, and that in defending said action defendants were obliged to pay and did pay out a sum of money. Although the counterclaim does not specify the particular law of the State of New York said to have been violated, it is evident from the phraseology that reference is made to section 20 of the former Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415), as amended by chapter 192 of the Laws of 1899, and chapter 520 of the Laws of 1905, and now re-enacted as section 20 of the present Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36). This act imposes upon contractors or owners of a building under construction the duty to protect by barriers the shafts or openings in buildings in course of construction in which elevators, elevating machines or hod-hoisting apparatus are used.
The question to be considered is as to the nature and extent of the obligation assumed by plaintiffs under the allegations of the counterclaim, for it is clear that they cannot be charged with negligence for the failure to do something which they were under no obligation to do. Besides making the necessary plans, details and specifications it is alleged that plaintiffs also agreed to "superintend the construction and erection of the said building, and of the contractors and laborers engaged in constructing the said building." Giving to these words their natural and reasonable construction they impose upon plaintiffs no other or greater duty than to be reasonably vigilant to see that the plans and specifications are followed; that proper material is used; that the building laws are complied with, and generally that the owner receives such a building as he contracts for, and even for defects in these particulars an architect employed to "superintend" is not responsible in damages if he has exercised reasonable care and skill. ( Petersen v. Rawson, 34 N.Y. 370.) The section of the Labor Law which plaintiffs are charged with permitting the contractors to violate had nothing to do with the construction of the building which could be as well constructed, and could as perfectly follow the plans and specifications without barriers around the shafts and openings as with them. The sole object of the section was to protect the workmen employed upon the building from bodily injury. ( Genovesia v. Pelham Operating Company, 130 App. Div. 200.) The very utmost obligation assumed by the plaintiffs under their alleged special contract of supervision was to see that the building was properly constructed, and if that result was achieved they were not called upon to watch and inspect every means adopted by the contractors in fulfilling their contract. We are, therefore, of the opinion that the obligations assumed by plaintiffs, as specified in the counterclaim, did not include an obligation to compel the observance by the contractors of that section of the Labor Law to which reference has been made. Furthermore the counterclaim does not allege that the defendants have paid the judgment which they now seek to recover from plaintiffs. Such an allegation is essential in an action against one sought to be held as an indemnitor. The counsel fees, which it is alleged have been paid, are but incidental to the principal recovery.
In our opinion the demurrer to the counterclaim should have been sustained.
The judgment is, therefore, reversed, with costs, and demurrer sustained, with costs, with leave to defendant to serve an amended answer amending the counterclaim set up on payment of costs in this court and in the court below within twenty days.
INGRAHAM, P.J., CLARKE and MILLER, JJ., concurred; LAUGHLIN, J., dissented.
LAUGHLIN, J. (dissenting):
I dissent for the reasons stated in the opinion of Mr. Justice GERARD at Special Term.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendants to amend counterclaim on payment of costs.
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