appear from the pleadings that the third-party plaintiff may be liable to the plaintiff on any theory of passive negligence.

POINT II

The written agreement between the thirdparty plaintiff and the third-party defendant cannot be construed to indemnify the thirdparty plaintiff from its own acts of negligence.

It has been repeatedly held that an agreement cannot be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms. (Inman v. Binghamton Housing Authority, 3 N. Y. 2d 137; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; Semanchuck v. Fifth Avenue & 37th St. Corp., 290 N. Y. 412; Walter V. Rao Electrical Equipment Co., Inc., 289 N. Y. 57; ThompsonStarrett Co. v. Otis Elevator Co., 271 N. Y. 36; Flynn v. N. Y. C. Omnibus Corp., 286 App. Div. 1109.) The pertinent clause in the instant case states: "To keep free and harmless LESSOR from liability for any property damage and personal injury caused indirectly or directly, by the leased equipment and materials while under the control and custody of the LESSEE.”

Although Mr. Justice Spector stated that the indemnification clause in the lease agreement "does not express in clear and unequivocal terms that 'Fordham' is to be indemnified for its own negligence,” he in effect held that it does, by his finding that "it clearly appears that ‘Fordham' intended to relieve itself of liability for any de

fects in the equipment by shifting that responsibility to the lessee” (79-81).

If the plaintiff establishes that Fordham leased the equipment to Donato in a dangerous and defective condition, this is certainly establishing active negligence on the part of Fordham; and if any indemnification agreement is to include such a situation, it must be an agreement that expresses "in clear and unequivocal terms that 'Fordham' is to be indemnified for its own negligence.” Obviously, this agreement does not so state.

Such a construction of the contract by the lower court is completely unwarranted and places upon Donato a burden which it did not agree to assume. It cannot be inferred from the language in the indemnification agreement that Donato would indemnify Fordham for accidents due to Fordham supplying defective hoists. One must bear in mind that the parties to the contract could have stated in unequivocal terms that Fordham was to be indemnified from its own negligence. However, the failure to do so can only be interpreted as evidence that there was no such intention on their part. Rather, the intention of the parties in inserting the indemnification clause in the contract was to protect Fordham from claims arising due to Donato's negligence in operating the hoist. It was not intended to indemnify Fordham for claims arising out of its own acts of negligence in supplying defective hoists.

As stated in Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36, 43:

“None of those three cases has the effect of overruling the general rule that a contract will not be construed to indemnify a person against his own negligence unless such inten

tion is expressed in unequivocal language. On the contrary, each is illustrative of the exception indicated in the rule as quoted. In construing a contract there must be taken into account the intent of the parties, as expressed in the contract and as indicated by the nature and extent of the work to be performed under the contract. The contract here has for its primary purpose not indemnification but construction of an integral part of a larger undertaking. To say that in contracting to construct such integral part, the appellant, by such general language as was here used, assumed the obligation of indemnifying respondent for claims resulting from accidents to persons caused by the negligence of respondent, especially in view of the duty resting upon respondent to provide safeguards against accidents of the nature of that which occurred is to place upon appellant an unreasonable burden, a burden not to be deemed to have been within contemplation of the parties as indicated by their contract.

“The mere fact that the accident occurred while the employees of appellant were engaged in work as defined in the contract is not sufficient to impose liability under the indemnity agreement. While it is true that the accident would not have occurred had they not been so engaged, the work was not the cause of the accident. It was respondent's own negligence which was the cause, and under such circumstances the language of the indemnity agreement was far too general in its nature to impose liability upon the appellant."

In Rego v. City of New York, 285 App. Div. 834, the Appellate Division unanimously reversed a lower court's decision sustaining a third-party complaint where the City sought indemnification from the contractor who was employed to install ventilating equipment in a garage owned by the City. During the course of work, an overhead metal runner fell and injured an employee of the contractor. The employee sued the City on the basis of a dangerous and defective runner and the City impleaded the contractor on the ground of a written indemnification agreement. The Appellate Division, in dismissing the complaint, stated :

“The contract may not be construed to indemnify the City against its own negligence. While the contractor undertook the additional expense, loss, risk and damage due to the opening of the garage, it may not be inferred from the language of the contract that the contractor assumed the costs of accidents due to the negligence of the City in maintaining a defective building."

Similarly, in the case at bar, the agreement cannot be interpreted to infer that Donato assumed to protect Fordham from accidents occurring from renting defective and dangerous hoists.

The case of Ward v. Metropolitan Distributors, Inc., 47 N. Y. S. 2d 866 aff'd 268 App. Div. 994, leave to appeal denied 268 App. Div. 1060, cited by the lower court in its decision, is not applicable to the instant case as the factual situation is entirely different. In the Ward case, the court interpreted an indemnification agreement under which the bailor, the person renting the equipment, agreed to indemnify the bailee from injuries resulting from the operation of each motor vehicle. The point at issue was the definition of the word "operation”; the case in no way involved a claim of equipment “in a defective and dangerous condition prior to the rental thereof,” as alleged in the instant complaint. Additionally, in the case at bar, the agreement is for the lessee to indemnify the lessor, which is the reverse of the situation in the Ward case.

Since in the instant case the agreement is general in nature and fails to unequivocally state that Fordham is to be indemnified for its own acts of negligence, the indemnification clause does not form a basis for a cause of action.

It is therefore respectfully submitted that the third-party complaint should be dismissed pursuant to Rule 106 of the Rules of Civil Practice as it does not state a cause of action either on the ground of common law right of indemnification or on the basis of written indemnification.

POINT III

The lower court abused its discretion in denying the third-party defendant's motion requiring the third-party plaintiff to separately state and number each cause of action stated in the third-party complaint.

If the motion to dismiss the third-party complaint is granted, the denial or granting of the motion to separately state and number each cause of action becomes immaterial. However, if the lower court's decision sustaining the third-party complaint is affirmed, the lower court's denial of the third-party defendant's motion pursuant to Rule 90 constitutes an abuse of discretion and should be reversed. (Glover v. Holbrook, 189 App. Div. 328; Scalzo v. Vincent, 279 App. Div. 1141; Hatch v. Visual Enterprises, Inc., 279 App. Div.