Kile v. Riefler Bros. Contractors

282 A.D. 1000, 125 N.Y.S.2d 680, 1953 N.Y. App. Div. LEXIS 5652

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 11, 1953
• Status: Published

Opinion

Order insofar as appealed from reversed on the law and facts, with $10 costs and disbursements, and motion to dismiss the third-party complaint granted, with $10 costs. Memorandum: We interpret the third-party complaint as a complete disavowal of negligence on the part of the defendant and third-party plaintiff, thus eliminating any possible premise upon which the original plaintiff could obtain a judgment against the third-party plaintiff. A valid basis for a judgment against the third-party plaintiff is an essential condition to sustain a claim over under section 193-a of the Civil Practice Act. (Cloud v. Martin, 273 App. Div. 769; Wolf v. La Rosa & Sons, 298 N. V. 597.) Moreover, as the original complaint does not charge the third-party plaintiff with liability by operation of law for a wrongful act committed by another, but, on the contrary, charges this party with active negligence of its own, it necessarily follows that the third-party plaintiff and the third-party defendant must be regarded as joint tort-feasors in pari delicto. (Fox v. Western New York Motor Lines, 257 N. Y. 305; Middleton v. City of New York, 276 App. Div. 780, affid. 300 N. Y. 732; Seider v. Kline, 279 App. Div. 1130; Sannit v. Buffalo Wire Works, 278 App. Div. 632, affd. 302 N. Y. 820.) The alleged indemnity agreement does not in unequivocal terms purport to indemnify the third-party plaintiff against its own negligence and, therefore, is not available to support the third-party complaint. (Thompson-Starrett Go. v. Otis Elevator Co., 273 N. Y. 36, 41; Walters v. Rao Elec. Equipment* Co., 289 N. Y. 57; Semanchuck V. Fifth Ave. & 37th St. Corp., 290 N. Y. 412.) All concur. (Appeal from part of an order denying a motion by the third-party defendant to dismiss the third-party complaint in an action for damages for the death of plaintiff’s intestate.) Present — MeCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.