Majority
Action to recover damages for personal injuries alleged to have been sustained by plaintiffs, passengers in defendant Detz’s automobile, which collided with the car of defendant Rossiter. Order denying the motion of defendant Detz to strike out and dismiss the cross pleading contained in the answer of defendant Rossiter reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. The cross-complaint of defendant Rossiter for indemnification from his codefendant is improperly interposed in this action where, under the allegations of the plaintiffs’ complaint, defendant Rossiter will be liable to plaintiffs only if his active negligence is established. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.