Putvin v. Buffalo Electric Co.

Order reversed, with $10 costs and disbursements, and motions granted, with $10 costs. Memorandum: The appellant concedes that the primary complaint in this action and the third-party complaint are identical with those passed upon by this court in Putvin v. Buffalo Elec. Co. (3 A D 2d 805). The several actions arise out of the same state of facts which relate to an explosion on the premises of the third-party defendant. In our prior decision we determined that in our view of the complaint the plaintiffs charge active and primary negligence against the defendant-third-party-plaintiff and recovery could only be had upon such proof. Therefore the defendant in a third-party action could not seek indemnification from the third-party defendant and its complaint was dismissed. Upon a reconsideration of our prior decision we adhere thereto. All concur. (Appeal- from an order of Erie Special Term denying motions by the third-party defendant Novadel-Agene Corp. to dismiss third-party complaints in 11 actions in negligence.) Present — McCurn, P. J., Vaughan, Kimball, Bastow and Goldman, JJ.