#### Fulton County Gas and Electric Company, Appellant, *v.*Hudson River Telephone Company, Respondent.

Third Department,

January 22, 1909.

Judgment overruling demurrer—when not res adjudicata as to sufficiency of complaint on subsequent demurrer to answer — negligence — action for contribution against .joint tortfeasor-—complaint stating cause of action — counterclaim, when insufficient.

Although a demurrer to a complaint has been overruled and a judgment to that effect entered, the judgment is not *res adjudicata*so as to prevent a defendant contesting a subsequent demurrer to its counterclaims from attacking the *344sufficiency of the complaint, for a demurrer searches the whole record and reaches back to condemn the first pleading that is defective.

The rule that one of two joint tort feasors cannot maintain an .action for contribution against the other does not obtain where one of them did not join in the wrongful act, for in such case the parties as to each other are not in *pari delicto,*even though they may both be liable to third persons.

Thus, where one of two codefendants has paid a judgment obtained against b.oth for personal injuries received by an electrical shock when the telephone wires maintained by one defendant came in contact with electric light wires maintained by the other, on the destruction of a building supporting the telephone wires, it may maintain an action against its codefendant for contribution under a complaint showing that the negligence causing the injury was solely that, of the codefendant, and that the j udgment was collected by a collusive agreement between the plaintiff in the other action and the codefendant. A complaint setting out said facts is not defective in failing to state a causé of action. An answer to such complaint which counterclaims for amounts paid by the defendant in settling actions brought by other parties against the joint defendants to. recover for injuries received at the same time and place by reason of the same negligence is subject to demurrer where the counterclaims do not show directly or by fair inference that the defendant was not actually connected with the negligent act for which it was compelled to pay,- This is true whether the burning of the building which supported the defendant’s wires, or its failure to protect its wires from contact with the high tension wires of the plaintiff, was the proximate cause of the injury, for in either case the defendant participated in the act or omission which caused the injury'.

Appeal by the plaintiff, the Fulton County Gas and Electric Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 22d day of July, 1908, upon the decision of the court, rendered after a trial at the Fulton Special Term, over, ruling the plaintiff’s demurrer to two separate counterclaims set up in the amended answer.

*Fred. Linus Carroll,*for the appellant.

*John A. Delehanty,*for the respondent.

Sewell, J.:

This action was brought to recover the amount paid by the- plaintiff in satisfaction of a judgment rendered' in an action for negligence brought by one Hathan W. Horning, against the plaintiff and the defendant, for personal injuries received from a current of electricity, and for the expenses incurred in defending that suit. The defendant demurred to the complaint upon the sole ground *345that it appeared upon the face thereof that it did not state facts sufficient to constitute a cause of action.

The demurrer was overruled with leave to withdraw the demur-, rer and answer, and an interlocutory judgment was entered in accordance with the decision. The defendant availed itself of this leave and answered, setting up two counterclaims for the amounts paid by it in settlement of actions brought by other parties against the plaintiff and defendant to recover damages for personal injuries received at the same time and place that Horning was injured, and by coming in contact with the same wire.

The plaintiff demurred to each of the counterclaims upon the ground that it is not of the character specified in section 501 of the Code of Civil Procedure, and that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled at Special Term and the judgment appealed from' was entered. The defendant’s counsel attacks the complaint, insisting that it does not state facts sufficient to constitute a cause of action. In reply, the plaintiff contends that the sufficiency of the complaint was .determined and became *res adjudicata*on the decision of the demurrer. The defendant claims that when the answer was served the demurrer was out of the case. It was held in *Brown*v. *Saratoga R. R. Co.*(18 N. Y. 495) that a demurrer which a party has - abandoned, like a pleading which has been amended, is no longer a part of the record. The same was held in *Wheelock*v. *Lee*(74 N. Y. 495) where the court added: *“*It is not available to either party for any purpose, and the fact that it was once interposed does not preclude the defendant from setting up the facts which he might originally have set up by way of answer, showing want of jurisdiction.” This rule was also announced in *Parsons*v. *Hayes*(50 N. Y. Super. Ct. 29); *Smith*v. *Britton*(2 T. & C. 498); *Village of Little Falls*v. *Cobb)*(80 Hun, 20) ; *Hayes*v. *Kedzie*(11 id. 577) and *McCullough*v. *Pence*(85 id. 271).

It is quite manifest from these authorities that the doctrine of *res adjudicata*does not apply to this case, and as a demurrer searches the whole record and reaches back to condemn the first pleading that is- defective *(Baxter*v. *McDonnell,*154 N. Y. 432), the defendant can raise any objection to the maintenance of the action which he did not waive by answering.

*346The question.is, therefore, presented whether it states facts sufficient to constitute a cause of action. The complaint in this case alleges that the plaintiff is’ an electric light, heat and power company and has for many years maintained a line of poles and wires for the transmission of electricity in the streets of the city of Johnstown under a' franchise from the city ; that several years after the construction of plaintiff’s line the defendant erected a telephone line which crossed West Montgomery street above the plaintiff’s wires; that the method and material used by the defendant were defective; that the wires were insecurely attached to the roofs of wooden buildings instead of poles, by insulated pins rather than approved brackets, and except as soi attached were entirely unsupported; that the spans of wire were of extraordinary and improper lengths; that no precaution was taken by the defendant to prevent its wires from falling or sagging down and coming into contact with the plaintiff’s wires at said crossing ; that one of the buildings to which the defendant’s wires ■ were: attached was destroyed by fire, and the telephone wires fell or sagged iintil they came into contact with the plaintiff’s wire at the crossing, and that the electric current was diverted to and transmitted along the .telephone wire to one Hathan W. Horning, and he was injured. The complaint also alleges that for several years preceding the accident the telephone wires extending over and across the plaintiff’s line ón Montgomery street were unused find without, electric connection; that in the year 1901 the defendant was notified and directed by the owners of the buildings to which the wires were: attached, and by the proper municipal authorities of the city of Johnstown, to take them down and remove them, and that the defendant neglected and refused to comply, with said notice and direction until after the 6th day of July, 1903, when Horning was injuredthat the plaintiff had no knowledge or means of knowing of the condition of the defendant’s wires, or of the method and material adopted and used in constructing and maintaining them; that the injury resulted solely from and was caused solely by the negligence of the defendant in constructing and maintaining its line, and.not by reason of any act or omission of the plaintiff. It alleges that an action was commenced by Horning against’the plaintiff and defendant to recover damages for the injury ; that Horning recovered a judgment against them, which was affirmed by the *347appellate courts,* and that in pursuance of an unjust, inequitable and collusive arrangement between Horning and the defendant, $12,951.56, the amount of the judgment, was collected from this plaintiff.

The ground taken by the defendant is that the injury was caused by the joint negligence of the plaintiff and defendant; that they were joint wrongdoers, and, therefore, neither is entitled to indemnity or contributions from the other.

The rule that one of two joint tort-feasors cannot maintain an action against the other does not apply to a case where one does the act or creates the condition and the other does not join therein. In such a case the parties are not *i/n pari delicto*as to each other, though as to third persons either may be held liable.

This exception to the rule has been frequently recognized in the courts of this and other States. *(Trustees of Canandaigua*v. *Foster,*81 Hun, 147; *Prescott*v. *Le Conte,*83 App. Div. 482; *Phoenix Bridge Co.*v. *Creem,*102 id. 354; *City of Brooklyn*v. *Brooklyn City R. R. Co.,*47 N. Y. 475 ; *Village of Port Jervis*v. *First National Bank,*96 id. 550 *; City of Rochester*v. *Campbell,*123 id. 405; *Tremblay*v. *Harmony Mills,*171 id. 598; *Dunn*v. *Uvalde Asphalt Paving Co.,*175 id. 214; *Bailey*v. *Bussing,*28 Conn. 455 ; *Mayberry*v. *Northern Pac. R. Co.,*100 Minn. 79; *Gray*v. *Boston Gas Light Co.,*114 Mass. 149; *Farwell*v. *Becker,*129 Ill. 261.)

The complaint in the present case alleges that the plaintiff was not negligent, and the facts alleged show that if it was in fault it was a fault not actually connected with the fault or wrong for which the judgment was rendered, and that the negligence of- the defendant was the prime and efficient cause of the injury. It is obvious that the plaintiff under these averments would be.entitled to give the necessary evidence to establish its cause of action.

“ Under the more recent authorities pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature of the pleader’s claims are sufficient, if under them he would be entitled to give the necessary evidence to establish his cause of action.” *(Coatsworth*v. *Lehigh Valley R. Co.,*156 N. Y. 457 ; *Zabriskie*v. *Smith,*13 id. 330.)

*348The counterclaims demurred to are clearly insufficient as they do not show directly or by fair inference that the defendant was not actually connected with the act or omission which occasioned the injnriés for which it was compelled to pay.

On the contrary, it is stated in each counterclaim that the defendant’s wire was attached to the Geisler mill when it was destroyed by fire; that the wire fell down, and by its fall came in contact with the electric light wire underneath, diverted the current and caused the injuries.

It matters not whether we assume that the burning of the building which supported the wire or the failure to protect against contact of the wires was the proximate cause of the injuries. In either view of the case it is clear that the defendant participated in the act or omission which caused the injury.

Indeed there is room for claiming that, as between themselves, the plaintiff was entitled to rely upon the defendant to protect against contact of the wires, for it was the act of the defendant in making the crossing by connecting its wires with a building on each side which created a situation requiring extra precaution. As was said in the case of *Horning*v. *Hudson River Telephone Co.*(111 App. Div. 125): “ So far as the lighting company is concerned there is no serious question that this line at this bridge, if it had not been for this crossing, or if the crossing had been made in. the usual way without' connection with the buildings, was beyond serious criticism.”

Our conclusion, therefore, is that the demurrer was improperly overruled at the Special Term and that the interlocutory judgment should be reversed, with costs.

All concurred; Smith, P. J., in result; Kellogg, J., concurred in result in memorandum.

*

 See *Horning*v. *Hudson River Telephone Co.*(111 App. Div. 122; 186 N. Y. 552).— [Rep.

Kellogg, J. (concurring in result):

Under the old procedure the decision of a demurrer resulted in an order with no greater force than an order upon an ordinary motion, and after decision the party at fault was permitted to withdraw the demurrer, and the cases cited in the prevailing opinion hold that thereupon the decision was of no practical effect. How the decision results in an interlocutory judgment after the trial of *349an issue of law. (Code Civ. Proc. §§ 497, 1021, 1236.) The demurrer is not withdrawn, but the interlocutory judgment becomes a part of the judgment roll. (Code Civ. Proc. § 1237.) Upon a review of the final judgment the interlocutory judgment may be reviewed if specified in the notice of appeal.

To the same cause of action a party cannot both demur and answer. He must make his election. If he demurs the fact that allegations in the complaint not denied are admitted ^and the fact that he challenges the sufficiency of the complaint bring about the result that the allegations of the pleading demurred to are practically admitted ; but the court may ' nevertheless permit him to answer or plead again after the decision of the demurrer, but the demurrer still stands as the basis of the interlocutory judgment, and the fact that the defendant in this case has, at his request, been permitted to plead again and has done so does not destroy the effect of the adjudication already had as to the sufficiency of the complaint. A judgment of a competent court is binding npon the parties as to the matters adjudicated. An interlocutory judgment is no exception to this rule. A demurrer is a mere matter of form and without substance unless the interlocutory judgment following its decision is binding upon the parties. There may be cases where the questions raised become unimportant after pleading over, or where the substance of the interlocutory judgment is merged in and swallowed up by the final judgment, but this is not such a case. The judgment of the Special Term not appealed from has established the sufficiency of the complaint, and we are. not, therefore, called upon to consider that question.

The alleged counterclaims show in substance that the defendant paid the moneys voluntarily and practically by virtue of an understanding with the plaintiff whereby the amount to be paid by each was fixed. If it has paid more than its just share it only shows a mistaken agreement.

I concur in the result.

Interlocutory judgment reversed, with costs, and plaintiff’s demurrer to defendant’s counterclaims sustained, with costs, with usual leave to defendant to amend its counterclaims on payment of costs in this court and at Special Term.