Broderick v. Cauldwell-Wingate Co.

281 A.D. 904, 120 N.Y.S.2d 289, 1953 N.Y. App. Div. LEXIS 3738

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 1953
• Status: Published

Opinion

Action to recover, on an express contract of indemnity, $27,268.86 paid by the third-party plaintiff to satisfy a judgment in favor of plaintiff in the main action and $8,047.57 expenses incidental to such action. The third-party defendant appeals from an order insofar as such order denies its motion for summary judgment, and the third-party plaintiff appeals from the same order insofar as such order denies its cross motion for summary judgment in its favor. Order modified by striking from the first ordering paragraph the word “denied” and by substituting therefor the word “granted”. As so modified, the order is affirmed, with $10 costs and disbursements to the third-party defendant. The contract does not by unequivocal language grant indemnity to the third-party plaintiff for its own negligence. If its negligent act for which it was cast in damages be an act of assurance or an assumption of control, or both, its negligence was active and not passive; hence, it may not have indemnity. Carswell, MacCrate and Beldoek, JJ., concur; Holán, P. J., and Adel, J., dissent and vote to affirm.