Opinion
January 22, 1945.
Action to recover damages for personal injuries suffered by the plaintiff when he was struck by a city-owned truck while employed by the impleaded defendant in reclaiming and salvaging material at a city dump. The City of New York appeals from the judgment dismissing its cross complaint against the impleaded defendant, under the terms of the contract pursuant to which the latter was permitted to reclaim and remove materials from the dump. Judgment reversed on the law, with costs, and judgment directed in favor of the City of New York against the impleaded defendant for the sum recovered by the plaintiff against said City, with costs. While no liability by the impleaded defendant to indemnify the City was established under paragraph (R) of the contract made by the City with that defendant, the City established such liability under paragraphs 2 and 3 thereof. The respondent does not otherwise contend, but urges that liability may not be predicated upon paragraphs 2 and 3, since only paragraph (R) had been pleaded specifically as a basis for liability. The cross complaint, however, pleaded the entire contract between the City and the contractor. In general terms, it was alleged that there was liability over pursuant to its terms. Moreover, the entire contract was received in evidence and liability was sought pursuant to the provisions of paragraphs 2 and 3 thereof. It is not urged that there is any defense to the absolute liability imposed by the provisions of paragraphs 2 and 3. Hagarty, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ., concur.