Opinion
December 29, 1958
Capecelatro Capecelatro for movant.
Mackenzie, Smith, Lewis, Michell Hughes for respondent.
This is a motion to dismiss the third-party complaint herein for legal insufficiency.
On May 16, 1957, the deceased was employed by the third-party defendant engaged in the building of a runway for the United States Government near Rome, New York. A power crane was being used and it was the property of the third-party plaintiff. It came in contact with a power line of the Niagara Mohawk Power Corporation. Mr. Morgan was killed. The primary complaint herein alleges active negligence upon the part of both Donahue and the Niagara Mohawk. There is no allegation in the third-party complaint of any contractual or statutory indemnification. Of course, there is no possibility of indemnification by one tort-feasor from another. ( Fox v. Western N.Y. Motor Lines, 257 N.Y. 305; Kile v. Riefler Bros. Contrs., 282 App. Div. 1000.)
In the instant case, if no liability is established upon the part of defendant Donahue, of course, there would be no action over, for the allegation herein is direct active negligence. If Donahue is held, it is only because he is an active tort-feasor. Under such circumstances there can be no action over. ( Desimone v. Burgess Co., 203 N.Y. 930; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414.)
Under the circumstances, the third-party complaint is dismissed.