Appellate Division of the Supreme Court of New York, 1945

Miele v. City of New York

Appellate Division of the Supreme Court of New York · Decided November 16, 1945

270 A.D. 122; 58 N.Y.S.2d 407

Counsel

Olin S. Nye of counsel (Reginald V. Spell, attorney), for impleaded defendant-appellant,, Fred Iscol of counsel (James Hall Prothero with him on the brief; Ignatius M. Wilkinson, Corporation Counsel), for respondent.

Opinion of the Court

Per Curiam.

There can be no recovery over other than contribution. as between joint tort-feasors, unless there is liability over by virtue of contract or by status (Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305, 307; Rhynders v. Greene, 255 App. Div. 401, 403).

*124The cross complaint here shows upon its face that there is no basis for a claim of indemnity against the impleaded defendant. Defendant-respondent is an active tort-feasor and no recovery over can be had from another wrongdoer (Employers’ Liability A. Corp. v. Post & McCord, 286 N. Y. 254, 265). Nor can the language of the permit, or the provisions of the Administrative Code of the City of New York (§ 82d-4.0), relied upon by respondent, be construed as a contract to indemnify respondent against its own negligence (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36, 41).

The order should be reversed, with $20 costs and disbursements, and the motion granted.

Martin, P. J., Dore, Cohn, Callahan and Wasservogel, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted.

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