#### The City of New York, Appellant, *v.*The American Railway Traffic Company, National Surety Company and The Empire State Surety Company, Respondents.

(Supreme Court, Appellate Term,

February, 1910.)

Indemnity — Extent and fixing of liability under express contract — Against liability for personal injuries —Accidents not arising from negligence.

A provision in a contract with a municipality for the removal of garbage, which provides that the contractor shall take all precautions necessary to prevent accidents and shall so conduct the work and operate the plant as to prevent accidents and injury to the city, maintain danger signals, indemnify the city against damages for injuries to persons and property resulting from negligence or carelessness in operating the plant, or any acts or omissions of the contractor who should he liable for such damages arising from negligence and for all violations of law, city ordinances or governmental regulations, does not impose liability upon the contractor for all accidents hut only for such as are occasioned by negligence, or violations of law, ordinances or regulations.

Appeal by the plaintiff from a judgment in favor of the defendants, rendered in the Municipal Court of the city of ¡New York, ninth district, borough of Manhattan.

Francis K. Pendleton (Theodore Connoly and Terence Farley, of counsel), for appellant.

George D. Yeomans (James W. Carpenter, of counsel), for respondents.

Seabury, J.

The city of ¡New York brought this action to recover from the defendants $300 for damages alleged to have been sustained by it as a result of a breach on the part of the defendants of a contract bearing date - October 28, 1902. The contract was originally made between the plaintiff and one Kennedy: and attached to the contract and *167forming part of it is the bond or obligation of the defendants The Empire State Surety Company and The Rational Surety Company. The condition of this bond is that, if the contractor “ shall well and truly do and perform, all the work provided for under said contract, in accordance with the terms and provisions therein stipulated, and in each and every respect comply with the conditions and covenants therein contained, then this obligation to be void; otherwise to remain in full force and virtue.” ■

On September 4, 1903, the original contract was assigned with the consent of the plaintiff and the sureties to the American Railway Traffic Company, a Rew Jersey corporation; and, on April 1, 1904, the original contract was assigned with the consent of the same parties to the American Railway Traffic Company, a Rew York corporation, and one of the defendants in this action.

The claim of the plaintiff is predicated upon clause TJ of the original contract. This clause provides as follows:

> *“*(U) That the contractor during the performance of this contract shall take all necessary precautions and place proper guards for the prevention of accidents; and shall so conduct and carry on the dumping, placing and final disposition of the materials, garbage, etc., and so operate the dumps, dumping places, receptacles, scows, and other conveyances and plant at all times that accidents shall be prevented, and the party of the first part shall suffer no injury or damage therefrom; and shall put up and keep at night sufficient lights, and at all times proper danger signals; and shall indemnify and save harmless the said party of the first part from all damages and costs to which it may be put, by reason of injury to person or to property resulting from negligence or carelessness in the operation of the plant or in guarding the same, or from any improper materials or apparatus used in connection therewith, or by reason or on account of any act or omission of said contractor, or the agents or servants thereof; that, said contractor shall be liable for all damages to person or to property arising from his negligence or that of his employees, and for all violations of law, city ordinances or government regulations.”

*168The plaintiff claims that, on November 23, 1908, the contractor did not so operate the dumps and receptacles referred to in the contract as to prevent an accident which happened to one of the horses belonging to the street cleaning department which resulted in the death of the horse. The present action is brought to recover the value of the horse.

The answer of the defendants pleads" a general denial and, as a separate defense, that whatever damages the plaintiff sustained were due to its own negligence or to the negligence of a third party or parties over whom the defendants had no control. The plaintiff contends that it is immaterial whether the accident was due to the plaintiff’s own negligence or the negligence of a third party, as clause U makes the contractor an insurer against any and all accidents caused by the operation of the dumps and receptacles. If we give to this clause a strict and narrow interpretation, it is evident that, whenever the city sustains a loss, it imposes liability upon the contractor in two classes of cases; first, whenever an accident happens and, second, whenever an accident happens through the negligence of the contractor, his servants or agents. Under such a strict and narrow view of the clause, it is difficult to see what necessity there was for the insertion of the provision that the contractor should be liable in case of negligence. If the contractor was intended to be made liable in *all*cases, what reason was there for providing, in the same clause, that he should be liable in the specific case of negligence?

We do not think that so narrow an interpretation would give effect to the intention of the parties, nor would it give effect to all parts of the clause. We think that the general and comprehensive terms in the' first part of the clause are limited by the latter portion which restricts the contractor’s liability to cases of negligence. The general part of the clause, which makes the contractor liable for all accidents causing loss to the city, is necessarily restricted by the specific -and particular statement that the contractor is liable for accidents caused by negligence. We think that the special provision providing for liability in case of ■ negli*169gence must be held to override the general provision which is comprehensive enough to impose liability'in all cases and which, if strictly interpreted, renders the latter part of the clause unnecessary and meaningless.

We think, therefore, that the learned court below properly construed the contract and that, in the absence of proof of negligence, the plaintiff was not entitled to recover.

It is claimed by the appellant that the evidence established the negligence of the contractor. In reference to this contention it is sufficient to point ont that the evidence pre-. sented merely a question of fact, and that no reason exists for disturbing the conclusion reached by the trial justice.

Bijur, J., concurs j Lehman, J., concurs in result.

Judgment affirmed, with costs.