Ella Sobel Et Al. v. City New York Et Al‪.‬

The injured plaintiff tripped on a cobblestone in the pavement of the crosswalk on Third Avenue at the intersection of East Tremont Avenue in The Bronx. It had got out of place after the crosswalk had been temporarily repaired following an excavation job but before the paving stones had been cemented in final position. The record contains evidence upholding plaintiffs' recoveries against the City of New York and the general contractor, Consolidated Telegraph and Electrical Subway Co. (described as Con Tel), and the judgment should likewise be affirmed insofar as it directs indemnification of the city by Con Tel. The city and Con Tel are not in pari delicto so as to prevent the application of the active and passive negligence rule (Trustees of Village of Geneva v. Brush Elec. Co., 50 Hun 581; Runkel v. Homelsky, 286 App. Div. 1101, affd. 3 N.Y.2d 857; Lobello v. City of New York, 268 App. Div. 880, affd. 294 N. Y. 816; Anderson v. Liberty Fast Freight Co., 285 App. Div. 44; Fletcher v. County of Broome, 286 App. Div. 286). Having obtained the permit from the city for excavation in a public street, Con Tel -- although it performed none of the work itself -- remained subject to a non-delegable duty to plaintiffs until the pavement was finally restored (Administrative Code of City of New York, § 82d-3.0; Doyle v. Union Ry. Co., 276 N. Y. 453). It subcontracted with W. J. Fitzgerald Paving Co., Inc. (described as Fitzgerald) to replace the pavement in permanent condition. That subcontract contains provisions which amount to express indemnification of Con Tel (apart from the mere promise to pave) for damages occurring after the time when Fitzgerald's responsibility began. The portion of the judgment is, therefore, affirmed requiring