Opinion
November 11, 1953.
Present — McCurn, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order insofar as appealed from reversed on the law and facts, with $10 costs and disbursements, and motion to dismiss the third-party complaint granted, with $10 costs. Memorandum: We interpret the third-party complaint as a complete disavowal of negligence on the part of the defendant and third-party plaintiff, thus eliminating any possible premise upon which the original plaintiff could obtain a judgment against the third-party plaintiff. A valid basis for a judgment against the third-party plaintiff is an essential condition to sustain a claim over under section 193-a of the Civil Practice Act. ( Cloud v. Martin, 273 App. Div. 769; Wolf v. La Rosa Sons, 298 N.Y. 597.) Moreover, as the original complaint does not charge the third-party plaintiff with liability by operation of law for a wrongful act committed by another, but, on the contrary, charges this party with active negligence of its own, it necessarily follows that the third-party plaintiff and the third-party defendant must be regarded as joint tort-feasors in pari delicto. ( Fox v. Western New York Motor Lines, 257 N.Y. 305; Middleton v. City of New York, 276 App. Div. 780, affd. 300 N.Y. 732; Seider v. Kline, 279 App. Div. 1130; Sannit v. Buffalo Wire Works, 278 App. Div. 632, affd. 302 N.Y. 820.) The alleged indemnity agreement does not in unequivocal terms purport to indemnify the third-party plaintiff against its own negligence and, therefore, is not available to support the third-party complaint. ( Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41; Walters v. Rao Elec. Equipment Co., 289 N.Y. 57; Semanchuck v. Fifth Ave. 37th St. Corp., 290 N.Y. 412.) All concur. (Appeal from part of an order denying a motion by the third-party defendant to dismiss the third-party complaint in an action for damages for the death of plaintiff's intestate.)