Szarewicz v. Alboro Crane Rental Corp.

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 Moisting Co., 6 A D 2d 619 , 621.) Concur—Stevens, J. P., Eager, Capozzoli, McGivern and McNally, JJ.