Majority
p. 122Angelo Miele, Plaintiff, v. City of New York, Respondent, and Charles Israel, Appellant. First Department, November 16, 1945.
p. 123
Olin S. Nye of counsel (Reginald V. Spell, attorney), for impleaded defendant-appellant,
Fred Iscol of counsel (James Hall Prothero with him on the brief; Ignatius M. Wilkinson, Corporation Counsel), for respondent.
There can be no recovery over other than contribution. as between joint tort-feasors, unless there is liability over by virtue of contract or by status (Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305 , 307; Rhynders v. Greene, 255 App. Div. 401 , 403).
p. 124
The cross complaint here shows upon its face that there is no basis for a claim of indemnity against the impleaded defendant. Defendant-respondent is an active tort-feasor and no recovery over can be had from another wrongdoer (Employers’ Liability A. Corp. v. Post & McCord, 286 N. Y. 254 , 265). Nor can the language of the permit, or the provisions of the Administrative Code of the City of New York (§ 82d-4.0), relied upon by respondent, be construed as a contract to indemnify respondent against its own negligence (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36 , 41).
The order should be reversed, with $20 costs and disbursements, and the motion granted.
Martin, P. J., Dore, Cohn, Callahan and Wasservogel, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted.
Cases cited
- Fox v. Western New York Motor Lines, Inc. 257 N. Y. 305 at 307 p. 123
- Employers' Liability Assurance Corp., Ltd., of London v. Post & McCord, Inc. 286 N. Y. 254 at 265 p. 124
- Thompson-Starrett Co. v. Otis Elevator Co. 271 N. Y. 36 at 41 p. 124