Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Sullivan, S.j.a.d.
Plaintiff, pursuant to leave granted, appeals from an order of the trial court denying plaintiff's motion to add Galaxie Builders Inc. as a defendant.
Plaintiff, a plumbing contractor, was doing the plumbing work on a private house then under construction. According to his answers to interrogatories, he had been working in the cellar and started to leave by walking on a plank which was provided as a temporary walkway out of the cellar. Unknown to plaintiff, the plank was not nailed down. As he reached the top of the plank it slipped off and threw plaintiff some eight feet to the cellar floor. Defendant Anthony P. Coraggio, who was "at the scene," was immediately notified of the accident. He said he would turn the matter over to his insurance company.
Some 19 months after the accident plaintiff filed suit alleging that Joseph Siano Jr. and Mary Siano were the owners of the property "on which there was construction being performed by Anthony P. Coraggio." Plaintiff further alleged
that he had been injured "due to the negligent maintenance and construction of a way of egress and ingress from the cellar." Mr. and Mrs. Siano, and Coraggio, were named as parties-defendant. The Sianos have since been dropped from the suit and are not involved in the case.
An answer was filed on behalf of Coraggio, generally denying the allegations of the complaint and pleading the defenses of contributory negligence and assumption of risk. An additional separate defense pleaded that the sole and proximate cause of the alleged accident was the negligent acts and omissions of third parties or persons over whom Coraggio exercised no control. The answer included a cross-claim for contribution against the Sianos under the Joint Tortfeasors Act.
As soon as the suit was filed the insurance carrier entered into settlement negotiations with counsel for the plaintiff and made an offer of settlement. (We were advised by counsel for defendant at oral argument that the insurance carrier for Galaxie Builders Inc., hereinafter mentioned, undertook to defend the suit against Coraggio because the policy afforded coverage to the corporate officers, of which Coraggio was one.)
In October 1965 plaintiff's attorney suffered a stroke and eventually the case was turned over to present counsel. In February 1966 the deposition of Coraggio was taken, during which he disclosed that he was not the general contractor in the building of the Siano house and that the general contractor was a corporation called Galaxie Builders in which he was a "partner" and held the office of vice-president. He further testified that Galaxie had three employees on the job, namely, himself, Joseph Quatse (who apparently was the other principal in the corporation) and one Wismer. He said that both he and Quatse were in charge of the work.
The case was pretried on March 4, 1966. In the pretrial order Coraggio, for the first time, made the affirmative contention that Galaxie Builders Inc. was the general contractor on the job and that he was merely an employee thereof. The order reserved to plaintiff the right to apply to add Galaxie Builders Inc. as an additional party.
At about the same time plaintiff revealed to his attorney that at the time of his fall the plumbing work in the house was being done under a written contract which listed "Galaxy Builders" as the "owner" of the property. The contract was signed by "Joseph Quatse, Owner."
By motion returnable March 25, 1966 plaintiff applied for leave to amend his suit "to include Galaxie Builders Inc., a New Jersey Corporation, as a defendant." After hearing argument in the matter, the trial court denied the motion on the ground that plaintiff was seeking to add a new party defendant ...