Opinion
October 29, 1970
Appeal from the Monroe Special Term.
Present — Goldman, P.J., Marsh, Gabrielli, Moule and Henry, JJ.
Order unanimously reversed, with costs, motion granted and third-party complaint dismissed. Memorandum: Plaintiff, an employee of the third-party defendant, was injured while he was repairing a coal loader which had been installed by third-party defendant on defendant's premises pursuant to a written contract between them. Plaintiff's complaint alleges that defendant's employees without notice or warning to him caused the machinery to start in motion by releasing the brakes thereon and as a result thereof one of the cars went over his hand. Defendant in its third-party complaint alleges that at the time plaintiff was injured he was under the employ and direction of third-party defendant which was primarily responsible for his safety, and that negligence if any, causing his injuries was actively and primarily that of the third-party defendant and not of third-party plaintiff. "A claim over against a third person charging the third person with active negligence will be allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant * * * Conversely, where the defendant is alleged to be guilty only of active as distinguished from passive negligence, impleader is improper as a matter of law". ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 455.) If none of the allegations of the complaint can be construed as charging defendant with liability without actual fault on its part the defendant may not seek recovery over from a third person ( Bush Term. Bldgs. v. Luckenbach S.S. Co., 9 N.Y.2d 426, 430, 431; Fiandach v. Mindnich, 33 A.D.2d 1096). None of the allegations of the complaint herein can be so construed. The allegations charge defendant with only active negligence. It follows that defendant may not seek recovery over from appellant on the theory that the negligence charged against it was only passive. ( Putvin v. Buffalo Elec. Co., supra.) The third-party complaint further alleges in its second cause of action that the contract contained the following indemnity clause. "The Contractor shall indemnify and save harmless the Company from and against all losses and all claims, demands, payments, suits, actions, recoveries and judgments of every nature and description made, brought or recovered against it, by reason of any act or omission of the said Contractor, his agents or employees, in the execution of the work or in guarding the same". There is no provision in the contract to indemnify defendant for its own negligence. Contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. ( Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41.) There being no such intention expressed in this contract, no claim for indemnity can be based upon it.