SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
July 9, 1968
BEN SZAREWICZ, PLAINTIFF,
ALBORO CRANE RENTAL CORP. ET AL., DEFENDANTS. ALBORO CRANE RENTAL CORP., THIRD-PARTY PLAINTIFF-RESPONDENT, V. HARROD STEEL ERECTION CO., INC., THIRD-PARTY DEFENDANT-APPELLANT
Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and McNally, JJ.
Order entered October 9, 1967, unanimously reversed, on the law, with $50 costs and disbursements to appellant, and the motion to dismiss the third-party complaint granted. "Where the defendant is alleged to be guilty only of active as distinguished from passive negligence, impleader is improper as a matter of law, since an actively negligent tort-feasor is not entitled to indemnity (see, e.g., Messaro v. Long Is. R. R. Co., 274 App. Div. 939)". (Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 455.) Moreover, in the absence of a specific agreement to assume responsibility for the negligence of the third-party plaintiff, the indemnity agreement "falls far short of that unequivocal expression of an intention to indemnify" required by the precedents. (Bernardo v. Fordham Hoisting Co., 6 A.D.2d 619, 621.)
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