Swift & Co. v. James Stewart & Co.

261 A.D. 930, 25 N.Y.S.2d 487, 1941 N.Y. App. Div. LEXIS 8133

Opinion

Action for declaratory judgment to determine the rights of the parties under an indemnity provision in a written agreement. Order denying plaintiff’s motion for judgment on the pleadings and granting defendant’s cross-motion to dismiss the complaint, and judgment entered pursuant thereto dismissing the complaint, unanimously affirmed, with ten dollars costs and disbursements. In the exercise of sound discretion an action for a declaratory judgment may not be entertained under the circumstances disclosed herein. The court will not by an advisory opinion pass upon an abstract question. We have, however, examined the merits and have concluded they require an affirmance. The indemnity provisions invoked by the plaintiff do not cover the subject-matter referred to in the complaint. These provisions may not be construed to require the defendant to indemnify the plaintiff against its own negligence. To effect such a result the intention to furnish such indemnity should be expressed in unequivocal terms. An expression in that form is not here present. Present — Lazansky, P. J., Cars-well, Johnston, Adel and Close, JJ.