Regan v. American Stevedores, Inc.

Order entered on September 21, 1961 denying motion of third-party defendant to dismiss the third-party complaint unanimously reversed on the law, with $20 costs and disbursements to the appellant, the motion granted and the third-party complaint dismissed. The complaint in this action charged the third-party plaintiff solely with acts which would constitute active or primary negligence. There is nothing alleged in the complaint which could impose *909liability on the third-party plaintiff by reason of passive or secondary negligence. Under such circumstances there is no right to implied indemnity against the third-party defendant (Bush Term. Bldgs, v. Luckenbach S. S. Co., 9 N Y 2d 426, 430). Concur — Breitel, J. P., Rabin, Valente, McNally and Stevens, JJ.