Regan v. American Stevedores, Inc. — 16 A.D.2d 908

Majority

p. 908

Peter Regan, Plaintiff, v. American Stevedores, Inc., Defendant and Third-Party Plaintiff-Respondent. Grace Line Inc., Third-Party Defendant-Appellant.

Order entered on September 21, 1961 denying motion of third-party defendant to dismiss the third-party complaint unanimously reversed on the law, with $20 costs and disbursements to the appellant, the motion granted and the third-party complaint dismissed. The complaint in this action charged the third-party plaintiff solely with acts which would constitute active or primary negligence. There is nothing alleged in the complaint which could impose

p. 909

liability on the third-party plaintiff by reason of passive or secondary negligence. Under such circumstances there is no right to implied indemnity against the third-party defendant (Bush Term. Bldgs, v. Luckenbach S. S. Co., 9 N Y 2d 426 , 430). Concur — Breitel, J. P., Rabin, Valente, McNally and Stevens, JJ.

Cases cited

Bush Terminal Buildings Co. v. Luckenbach Steamship Co. 9 N Y 2d 426 N.Y. 1961-03-30 at 430 p. 909