Kelly v. City of New York

Appellate Division of the Supreme Court of New York

Kelly v. City of New York

7 A.D.2d 839, 181 N.Y.S.2d 841, 1959 N.Y. App. Div. LEXIS 10224

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 20, 1959

StatusPublished

This text of 7 A.D.2d 839 (Kelly v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. City of New York, 7 A.D.2d 839, 181 N.Y.S.2d 841, 1959 N.Y. App. Div. LEXIS 10224 (N.Y. Ct. App. 1959).

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Opinion

Judgment in favor of the third-party plaintiff, the City of New York, against the third-party defendant is reversed on the law and the third-party complaint is dismissed, with costs to the appellant. The permit issued by the Department of Marine and Aviation which provides that the third-party defendant will assume full responsibility for any damage to property or injury to persons resulting from this privilege, cannot be construed as unequivocally expressing an intent to indemnify the third-party plaintiff against its own negligence. (Inman v. Binghamton Housing Auth., 3 N Y 2d 137; Thompson-Starrett Co. v. Otis Elev. Co., 271 N. Y. 36.) The third-party plaintiff was primarily negligent and therefore is not entitled to indemnification, either under the contract or at common law. Concur — Botein, P. J., Breitel, M. M. Frank, Valente and McNally, JJ.

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Judgment in favor of the third-party plaintiff, the City of New York, against the third-party defendant is reversed on the law and the third-party complaint is dismissed, with costs to the appellant. The permit issued by the Department of Marine and Aviation which provides that the third-party defendant will assume full responsibility for any damage to property or injury to persons resulting from this privilege, cannot be construed as unequivocally expressing an intent to indemnify the third-party plaintiff against its own negligence. (Inman v. Binghamton Housing Auth., 3 N Y 2d 137; Thompson-Starrett Co. v. Otis Elev. Co., 271 N. Y. 36.) The third-party plaintiff was primarily negligent and therefore is not entitled to indemnification, either under the contract or at common law. Concur — Botein, P. J., Breitel, M. M. Frank, Valente and McNally, JJ.

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Bluebook (online)

7 A.D.2d 839, 181 N.Y.S.2d 841, 1959 N.Y. App. Div. LEXIS 10224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-city-of-new-york-nyappdiv-1959.

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