On certification from Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Burling and Brennan. For reversal -- Justices Heher and Oliphant. The opinion of the court was delivered by William J. Brennan, Jr., J.
We granted certification to decide the following question: when each party separately seeks and is denied interlocutory relief by the trial court and the Appellate Division pursuant to R.R. 2:2-3(b) allows one party leave to appeal from the action adverse to him, may the other party cross-appeal of right from the action by which he is aggrieved?
Terry Steel Contractors, Inc., held a subcontract with Mahony-Troast Construction Co. to do the structural steel work in the erection of a tower. Terry's employee, Richard F. Trecartin, was killed in a fall from the tower. His administratrix ad prosequendum sued Mahony-Troast, alleging that his death was due to its negligence.
Mahony-Troast filed a third-party action against Terry demanding that Terry hold it harmless under a provision of the subcontract by which Terry agreed to indemnify it for
damages for bodily injuries or death sustained by any person "due to any act or omission of the subcontractor, his employees or agents, arising out of and during the prosecution of the work of the subcontractor." This third-party action was severed from the main case.
The trial of the main case resulted in a verdict for the plaintiff which, however, was reversed by the Appellate Division with direction for a new trial. Trecartin v. Mahony-Troast Construction Co., 18 N.J. Super. 380 (1952). Thereafter the main case was settled, and on December 19, 1952 a stipulation of dismissal was filed, signed by the plaintiff and Mahony-Troast but not by Terry, expressly providing that the dismissal was "without effect upon the continuance of the third-party action."
Mahony-Troast allowed two and one-half years to pass before moving, on March 10, 1955, for leave to amend the third-party complaint and to restore the action to the active trial calendar. The proposed amended complaint is in two counts. The first count recites the facts as to the course taken by the main case and its dismissal after settlement. Judgment is demanded in the amount of the settlement plus the sums expended in the defense of the main case, the complaint alleging that Mahony-Troast's negligence, if any, contributing to Trecartin's death "was merely passive in character" and that Trecartin's death "was in fact caused by the active negligence of the agents, servants or employees of Terry." The theory of this count apparently is a claimed right of indemnification based upon an alleged distinction between "active" and "passive" negligence. See Public Service Electric & Gas Company v. Waldroup, 38 N.J. Super. 419 (App. Div. 1955). The second count claims a right of indemnification by force of the express provision of the subcontract mentioned in the original complaint.
Terry countered with motions for summary judgment and to dismiss the third-party action for lack of prosecution and upon the ground that the action was moot.
The trial judge denied all of the motions but ordered that the cause be set down for pretrial conference.
Terry then successfully sought leave of the Appellate Division under R.R. 2:2-3(b) to appeal from the portion of the interlocutory order denying its motions to dismiss the action and to enter summary judgment. Mahony-Troast did not seek leave to appeal from that portion of the order denying its motion for leave to file an amended third-party complaint but, after ...