Callahan, J.
The infant plaintiff has recovered a judgment against all the defendants for personal injuries received on August 18, 1936, when certain bags containing pebbles, which had been piled on the sidewalk in front of premises 318-322 East Eighty-third street, New York city, fell upon him. His father, plaintiff David Schwartz, has obtained a judgment against all the defendants for loss of services.
The premises referred to were owned by the defendant Bank for Savings in the City of New York (hereinafter referred to as the bank), and were undergoing alterations under a contract between the bank and defendant Merola Bros. Construction Corp. (hereinafter referred to as Merola), as general contractor. Merola had subcontracted certain tile and other work, including terrazzo work, to Cerussi Marble & Tile Company, Inc. (hereinafter referred to as Cerussi). Cerussi, in turn, had subcontracted the terrazzo work to New Deal Terrazzo Company, Inc. (hereinafter referred to as New Deal).
In addition to plaintiffs’ claim against the various defendants, there were cross-claims for liability over by the defendant bank against Merola, Cerussi and New Deal, and a further cross-claim by Cerussi against New Deal.
[634]*634Plaintiffs’ judgment was based upon a verdict of the jury which stated in its finding that all four defendants were equally guilty of negligence. The trial court, in submitting the issues to the jury, directed that, in the event of a verdict for the plaintiffs, the ¡jury should state which of the defendants it found negligent, but it gave no direction to the jury to determine the quality or degree of negligence as among the various defendants. .
After the jury had rendered its verdict, the trial court directed a further verdict dismissing all cross-claims, stating that it did so because the jury’s verdict had established that all defendants were negligent, and, therefore, none of them might recover over on its cross-claim.
This appeal presents pwo general questions: The first involving the propriety of plaintiffs’ recovery against defendants, and the second the propriety of the court’s ruling on the cross-claims.
In submitting the- case to the jury, the trial court made statements which, in effect, advised the jury that the work contracted for involved the placing of materials on the sidewalk, and that such work was inherently dangerous. It also advised the jury, however, that plaintiffs might not recover against any of the defendants unless it was established that such defendant had notice of the dangerous condition and an opportunity to correct it. While we think that the statements of the trial court that the contract which was let by the bank involved placing of materials on the sidewalk and that such work was inherently _ dangerous, were erroneous, we think that, taking the charge as a whole, it was not so prejudicial to the rights of any of the defendants in so far as the plaintiffs’ claims against the various defendants are concerned, as to require a reversal of the judgment in plaintiffs’ favor.
The alteration of a building did not necessarily involve the use of the highway for the storage of materials, as the contractors might have carried all materials directly into the building. When the contractors chose to use the sidewalk for storage purposes, their acts may have been collateral ones in the performance of the work, and the manner in which they piled the bags, which was the dangerous condition on which plaintiffs relied, was a mere detail in the performance of the work by the contractors. However, under the present circumstances, it may well be that there were issues of fact as to whether the contract contemplated that any part of the work should be done on the sidewalk. (Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303.) That issue should have been left to the jury, with proper instructions. We find, however, that any error in the instructions to the jury with respect to the duty of the defendants was rendered harmless, because, [635]*635under the charge, they could not be held hable unless it was found that they had notice of the dangerous condition and failed to remedy it.
The protection afforded those who have employed an independent contractor to do work adjacent to the highway would not seem to reheve the employer, who being present and having supervision of the conduct of the work, sees and realizes that the one performing it is doing so in a neghgent manner so as to increase danger to pedestrians. Failure to correct the danger created by the contractor, under such conditions, might well create habihty to injured third persons, especially where the owner had notice of the existence of a nuisance in the highway. (Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461.) A general contractor has been held hable under such circumstances for failure to correct conditions created by his subcontractor. (Rosenberg v. Schwartz, 260 N. Y. 162, 166.)
An owner has been held hable for an accident on private property, where it maintained supervision of the work, acting as its own general contractor. (Wohlfron v. Brooklyn Edison Co., Inc., 238 App. Div. 463; affd., 263 N. Y. 547.) Merola and Cerussi would plainly be hable to plaintiffs under these rules.
Although the contract between the bank and Merola did not call for supervision of the work by the bank, the evidence discloses ■ that an agent of the bank visited the premises daily to observe the progress of the work. Under the circumstances we think it was a question of fact for the jury as to whether the bank had notice that a nuisance had been created in the highway adjacent to its property. Neghgence arising from a failure to correct such nuisance after notice thereof would create liability on the owner’s part. Therefore, we affirm the plaintiffs’ verdict against all the defendants.
While there was no direct evidence as to who placed the bags on the sidewalk, the inference is clear that the bags were put there by the agents of New Deal, or for its use, as the pebbles were used solely in the terrazzo work which was being carried out by New Deal. New Deal had purchased these materials. At least, it was the duty of New Deal, in the first instance, to see that these bags were removed to a safe place. New Deal was, therefore,
1 the one primarily responsible for the dangerous condition which resulted in the injuries to the infant plaintiff. The remaining defendants were hable for failure to correct the dangerous condition created by New Deal, of which they had notice.
The contract between Merola and the bank contained a clause which provided, in substance, that the owner was to be indemnified by Merola for liability imposed by law due to any act or omission of Merola, or its employees or agents, in the performance of the [636]*636work contracted for. Because of this provision, we are of the opinion that the bank was entitled to indemnification from Merola.
We are further of the opinion that the bank was entitled to indemnification under the present circumstances from New Deal, for the reason that if the bank was negligent, its negligence was only passive, and, on common-law principles, it was entitled to indemnity from the active wrongdoers.
While it is true that the provisions for indemnity contained in construction contracts do not constitute a general contract of insurance, and, therefore, would not ordinarily indemnify against one’s own negligence
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Callahan, J.
The infant plaintiff has recovered a judgment against all the defendants for personal injuries received on August 18, 1936, when certain bags containing pebbles, which had been piled on the sidewalk in front of premises 318-322 East Eighty-third street, New York city, fell upon him. His father, plaintiff David Schwartz, has obtained a judgment against all the defendants for loss of services.
The premises referred to were owned by the defendant Bank for Savings in the City of New York (hereinafter referred to as the bank), and were undergoing alterations under a contract between the bank and defendant Merola Bros. Construction Corp. (hereinafter referred to as Merola), as general contractor. Merola had subcontracted certain tile and other work, including terrazzo work, to Cerussi Marble & Tile Company, Inc. (hereinafter referred to as Cerussi). Cerussi, in turn, had subcontracted the terrazzo work to New Deal Terrazzo Company, Inc. (hereinafter referred to as New Deal).
In addition to plaintiffs’ claim against the various defendants, there were cross-claims for liability over by the defendant bank against Merola, Cerussi and New Deal, and a further cross-claim by Cerussi against New Deal.
[634]*634Plaintiffs’ judgment was based upon a verdict of the jury which stated in its finding that all four defendants were equally guilty of negligence. The trial court, in submitting the issues to the jury, directed that, in the event of a verdict for the plaintiffs, the ¡jury should state which of the defendants it found negligent, but it gave no direction to the jury to determine the quality or degree of negligence as among the various defendants. .
After the jury had rendered its verdict, the trial court directed a further verdict dismissing all cross-claims, stating that it did so because the jury’s verdict had established that all defendants were negligent, and, therefore, none of them might recover over on its cross-claim.
This appeal presents pwo general questions: The first involving the propriety of plaintiffs’ recovery against defendants, and the second the propriety of the court’s ruling on the cross-claims.
In submitting the- case to the jury, the trial court made statements which, in effect, advised the jury that the work contracted for involved the placing of materials on the sidewalk, and that such work was inherently dangerous. It also advised the jury, however, that plaintiffs might not recover against any of the defendants unless it was established that such defendant had notice of the dangerous condition and an opportunity to correct it. While we think that the statements of the trial court that the contract which was let by the bank involved placing of materials on the sidewalk and that such work was inherently _ dangerous, were erroneous, we think that, taking the charge as a whole, it was not so prejudicial to the rights of any of the defendants in so far as the plaintiffs’ claims against the various defendants are concerned, as to require a reversal of the judgment in plaintiffs’ favor.
The alteration of a building did not necessarily involve the use of the highway for the storage of materials, as the contractors might have carried all materials directly into the building. When the contractors chose to use the sidewalk for storage purposes, their acts may have been collateral ones in the performance of the work, and the manner in which they piled the bags, which was the dangerous condition on which plaintiffs relied, was a mere detail in the performance of the work by the contractors. However, under the present circumstances, it may well be that there were issues of fact as to whether the contract contemplated that any part of the work should be done on the sidewalk. (Wright v. Tudor City Twelfth Unit, Inc., 276 N. Y. 303.) That issue should have been left to the jury, with proper instructions. We find, however, that any error in the instructions to the jury with respect to the duty of the defendants was rendered harmless, because, [635]*635under the charge, they could not be held hable unless it was found that they had notice of the dangerous condition and failed to remedy it.
The protection afforded those who have employed an independent contractor to do work adjacent to the highway would not seem to reheve the employer, who being present and having supervision of the conduct of the work, sees and realizes that the one performing it is doing so in a neghgent manner so as to increase danger to pedestrians. Failure to correct the danger created by the contractor, under such conditions, might well create habihty to injured third persons, especially where the owner had notice of the existence of a nuisance in the highway. (Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461.) A general contractor has been held hable under such circumstances for failure to correct conditions created by his subcontractor. (Rosenberg v. Schwartz, 260 N. Y. 162, 166.)
An owner has been held hable for an accident on private property, where it maintained supervision of the work, acting as its own general contractor. (Wohlfron v. Brooklyn Edison Co., Inc., 238 App. Div. 463; affd., 263 N. Y. 547.) Merola and Cerussi would plainly be hable to plaintiffs under these rules.
Although the contract between the bank and Merola did not call for supervision of the work by the bank, the evidence discloses ■ that an agent of the bank visited the premises daily to observe the progress of the work. Under the circumstances we think it was a question of fact for the jury as to whether the bank had notice that a nuisance had been created in the highway adjacent to its property. Neghgence arising from a failure to correct such nuisance after notice thereof would create liability on the owner’s part. Therefore, we affirm the plaintiffs’ verdict against all the defendants.
While there was no direct evidence as to who placed the bags on the sidewalk, the inference is clear that the bags were put there by the agents of New Deal, or for its use, as the pebbles were used solely in the terrazzo work which was being carried out by New Deal. New Deal had purchased these materials. At least, it was the duty of New Deal, in the first instance, to see that these bags were removed to a safe place. New Deal was, therefore,
1 the one primarily responsible for the dangerous condition which resulted in the injuries to the infant plaintiff. The remaining defendants were hable for failure to correct the dangerous condition created by New Deal, of which they had notice.
The contract between Merola and the bank contained a clause which provided, in substance, that the owner was to be indemnified by Merola for liability imposed by law due to any act or omission of Merola, or its employees or agents, in the performance of the [636]*636work contracted for. Because of this provision, we are of the opinion that the bank was entitled to indemnification from Merola.
We are further of the opinion that the bank was entitled to indemnification under the present circumstances from New Deal, for the reason that if the bank was negligent, its negligence was only passive, and, on common-law principles, it was entitled to indemnity from the active wrongdoers.
While it is true that the provisions for indemnity contained in construction contracts do not constitute a general contract of insurance, and, therefore, would not ordinarily indemnify against one’s own negligence (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36), it has also been held that such a clause will afford indemnification from an active wrongdoer to one merely passively negligent. (Dudar v. Milef Realty Corp., 258 N. Y. 415.)
In Thompson-Starrett Co. v. Otis Elevator Co. (supra), where the indemnity clause was held ineffective, the parties had stipulated that the accident involved occurred solely by reason of the negligence of the indemnitee. The agreement there considered merely provided generally for indemnity against all claims for damages, and the court held that it did not afford indemnity for injuries sustained by the indemnitor’s employees growing out of work which was not within the indemnitor’s contract but was under the exclusive jurisdiction of the indemnitee.
In the present case the accident occurred in connection with the performance of work which the indemnitor contracted to perform, and the provision for indemnity was broad enough to include an obligation to indemnify from liability arising because of the negligence of subcontractors of the indemnitor.
In Dudar v. Milef Realty Corp. (supra) an agreement of indemnity had been executed running to the owner, who also acted as general contractor. The active negligence was that of the indemnitor, a subcontractor. The owner was held liable to an injured person solely for failure to warn of the danger which the subcontractor’s actions created. Therefore, the indemnitor was only passively negligent. The Court of Appeals held that under such circumstances the covenant of indemnity was effective. That decision seems controlling here.
That in the present case the general contractor may not have been the one primarily negligent does not alter the case. It is only where the indemnitee is actively negligent or is the only negligent participant that it may not secure indemnification without unequivocal assumption of such liability under the terms of the contract on which it relies. The degree of the indemnitor’s negligence, as' distinguished from that of his subcontractors, would [637]*637not seem to be the controlling factor in a case where the covenant provides for indemnification from acts of these subcontractors. The indemnitor here was a general contractor which had assumed responsibility to the bank for the careful performance of the work. (See Thompson-Starrett Co. v. Otis Elevator Co., supra, p. 41.) Although the indemnitee would be liable to an injured third person for failure to correct a dangerous cpndition- created by the indemnitor’s subcontractors, the fact remains that the one whose acts were insured against created the danger. Unless the covenant was effective under such circumstances, it would be meaningless.
The bags of pebbles involved here were to be used by New Deal, and the inference is inescapable that New Deal’s agents placed the bags on the sidewalk. In any event, it was New Deal’s business to put them in a safe place. Therefore, New Deal was clearly the primary wrongdoer as between the present defendants. As such, by implication of law, it stood in the relation of an indemnitor to an owner only passively negligent. (Phœnix Bridge Co. v. Creem, 102 App. Div. 354; affd., 185 N. Y. 580; Scott v. Curtis, 195 id. 424.) Privity of contract is not essential for indemnification. The liability is said to be quasi contractual. (Woodward, Law of Quasi Contracts, § 259.)
Cerussi, the one directly supervising New Deal’s work, was hable to the injured person for failure to correct the dangerous condition of which it had notice. However, it was not the primary wrongdoer and had made no express agreement to indemnify the bank. Not having created the dangerous condition, it was not required to indemnify the owner in the absence of a covenant to do so. Therefore the bank’s cross-claim against Cerussi was properly dismissed.
The cross-claim of Cerussi against New Deal rested solely on common-law principles of indemnity. The proof disclosed that Cerussi was in active supervision of the work, including the receipt of some materials used for terrazzo work. While, in the absence of an express covenant, the question of New Deal’s obligation to indemnify Cerussi is not free from doubt (see Dudar v. Milef Realty Corp., supra), we hold that the jury had the right under the circumstances to find that Cerussi was guilty of some degree of active negligence and for this reason Cerussi was not entitled to indemnity from New Deal.
Nor does the verdict of the jury finding each defendant “ equally ” guilty of negligence eliminate the right to indemnity. The jury was not instructed to determine any issue concerning active or passive, primary or secondary negligence. Without advice from the court concerning what constituted the distinguishing features [638]*638of such classifications — if, indeed, these questions of degree would ever be questions of fact — the jury’s finding that all parties were equally guilty of negligence is entitled to no weight.
The issues, which were determinative of the cross-claims, appear to be solely issues of law, at least they became such after plaintiffs’ right to recovery was established.
Upon plaintiffs’ proof, which the jury credited, it follows that New Deal was the primary offender and the bank was only passively negligent.
For the reasons herein indicated, the trial court should have directed judgment over in favor of the bank against Merola Bros, and New Deal, and the remaining cross-claims should have been dismissed.
The judgment in favor of plaintiffs and against the defendants should be affirmed, with costs. The judgment in favor of defendants Merola and New Deal against defendant bank dismissing the cross-claims should be reversed and judgment directed for the bank on such cross-claims. Otherwise, the judgment should be affirmed.
Glennon and Untermyer, JJ., concur; Dore, J., dissents and votes to affirm; Martin, P. J., concurs in the opinion of Mr. Justice Callahan except in so far as it directs that the judgment in favor of the plaintiffs and against defendant Bank for Savings in the City of New York be affirmed, and, as to that defendant, votes to reverse the judgment and dismiss the complaint.