Putvin v. Buffalo Electric Co. — 4 A.D.2d 1009

Majority

p. 1009

Julia Putvin, as Administratrix of the Estate of Percy J. Putvin, Deceased, Plaintiff, v. Buffalo Electric Co., Inc., et al., Defendants. Joseph Davis, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents, v. Novadel Agene Corporation (now Wallace & Tiernan, Inc.), Third-Party Defendant-Appellant. Dolores Holzman, as Administratrix of the Estate of Allan T. Holzman, Deceased, Plaintiff, v. Buffalo Electric Company, Inc., et al., Defendants. Joseph Davis, Inc., Third-Party Plaintiff-Respondent, v. Novadel Agene Corporation (now Wallace & Tiernan, Inc.), Third-Party Defendant-Appellant. (And Nine Other Actions.)

Order reversed, with $10 costs and disbursements, and motions granted, with $10 costs. Memorandum: The appellant concedes that the primary complaint in this action and the third-party complaint are identical with those passed upon by this court in Putvin v. Buffalo Elec. Co. ( 3 A D 2d 805 ). The several actions arise out of the same state of facts which relate to an explosion on the premises of the third-party defendant. In our prior decision we determined that in our view of the complaint the plaintiffs charge active and primary negligence against the defendant-third-party-plaintiff and recovery could only be had upon such proof. Therefore the defendant in a third-party action could not seek indemnification from the third-party defendant and its complaint was dismissed. Upon a reconsideration of our prior decision we adhere thereto. All concur. (Appeal- from an order of Erie Special Term denying motions by the third-party defendant Novadel-Agene Corp. to dismiss third-party complaints in 11 actions in negligence.) Present — McCurn, P. J., Vaughan, Kimball, Bastow and Goldman, JJ.