caused directly or indirectly by the use of the leased equipment, and in that the third party defendant, by its agents, servants or employees, was otherwise negligent in the premises, the third party plaintiff in no wise contributing to the occurrence hereinabove described" (41-45).

By notice of motion dated November 21, 1957, the appellant moved pursuant to Rule 106, subdivision 4 of the Rules of Civil Practice, to dismiss the third-party complaint on the ground that it does not state facts sufficient to constitute a cause of action (16-20). Mr. Justice Spector held that the third-party complaint is insufficient to plead common law indemnification, but denied the motion on the basis that the indemnification agreement between Fordham and Donato is broad enough to indemnify Fordham from its own acts of negligence (73-82).

The third-party defendant then moved to require the third-party plaintiff to separately state and number the cause of action based on negligence and the cause of action based on the indemnification clause (26-30), but this motion was denied by Mr. Justice Fine on the ground that "no useful purpose is served by its granting and its denial would result in no prejudice to the moving party” (82-85). The third-party defendant appeals from both orders (7-11).

POINT I

a.

The third-party complaint does not plead a common law right of indemnification.

Section 193(a) of the Civil Practice Act, which governs third-party practice, reads as follows: “THIRD-PARTY PRACTICE.

1. After the service of his answer, a defendant may bring in a person not a party to the action, who is or may be liable to him for all or part of plaintiff's claim against him, by serving as a third-party plaintiff upon such person a summons and copy of a verified complaint. The claim against such person, hereinaf called the third-party defendant, must be related to the main action by a question of law or fact common to both controversies, but need not rest upon the same cause of action or the same ground as the claim asserted against the third-party plaintiff.”

Under the case law which has interpreted this section, the courts have uniformly held that a third-party action may be instituted where the third-party plaintiff has a common law right of indemnity against the third-party defendant. Such common law right of indemnity exists when the original defendant, although himself liable to the plaintiff, can look to another for indemnification because the latter's active negligence is the basis for such liability on the defendant's part. (McFall v. Compagnie Maritime Belge, 304 N. Y. 314; Scott v. Curtis, 195 N. Y. 424.)

If, however, the third-party action is but a negation of liability by the third-party plaintiff, and it appears from the pleadings that the original defendant is liable either for its own active negligence or not at all, then the third-party action must fall. (Coffey v. Flower City Carting Co., 2 A. D. 2nd 191, aff'd 2 N. Y. 2nd 898.)

According to the original complaint, Fordham is charged with renting to Donato defective and dangerous hoisting equipment; with employing a hoist operator who was suffering from an infirmity; and with careless and negligent operation of the hoist through its employee, Albert Smith. Consequently, plaintiff's complaint must stand or fall on the allegations of affirmative acts of negligence on the part of Fordham. Fordham's denial that Albert Smith was its employee is merely by way of defense to the main action, and does not alter the fact that Fordham would only be liable for its active negligence and not on any theory of passive negligence. (LaRocca v. Farrington, 301 N. Y. 247.)

Clearly, where Fordham could only be liable to the plaintiff for its active negligence, no right of indemnification may be asserted against any thirdparty. (McFall v. Compagnie Maritime Belge, 304 N. Y. 314; Balch v. Richby Realty Corp., 4 A. D. 2nd 864 aff’d 4 N. Y. 2nd 1006; Kile v. Riefler Bros., 282 App. Div. 1000; Edwards v. Sophkirsh Holding Corp., 280 App. Div. 168 aff’d 304 N. Y. 850.)

If, on the other hand, the plaintiff sustained injuries not by reason of the defective and dangerous equipment leased by Fordham and not by reason of the act of Fordham's employee (since they claim Smith was not their employee) but because, as it is alleged in the third-party complaint, that:

(1) The third-party maintained and controlled the hoisting equipment;

(2) That the third-party defendant employed incompetent men to operate and control the equipment (Smith);

(3) The third-party defendant operated the hoisting equipment for purposes of carrying passengers; and

(4) The third-party defendant voluntarily undertook to make repairs to the hoisting equipment;

then no liability would attach to Fordham. If no liability attaches to Fordham, there is no need for indemnification.

In the case of Balch v. Richby, supra, this Court granted the third-party defendant's motion to dismiss the third-party complaint and stated:

“It is obvious that the third party complaint does not spell out facts which support the theory of liability over, either on contract indemnity or implied indemnity in the law of torts. Rather, it charges an entirely different cause of the accident, foreign to that contained in the original complaint. This would not support a liability over, but may well constitute a defense in the main action. If the defendant-owner's theory is that the accident was caused by the concurrent negligent acts of permitting the elevators to be open on the first floor and the leaving of an iron plate at the opening of the shaftway on the second floor, then the defendant-owner and the third party defendant would be joint tort feasors. As between joint tort feasors, in pari delicto, there is no right of liability over.”

Similarly, in the case at bar, the third-party complaint sets forth an entirely different cause of the accident, which is foreign to that contained in the original complaint. If the allegations of the third-party complaint were true, they would constitute a defense to the main action, but would definitely not support liability over against the third-party defendant. The aforesaid principles were correctly applied by Mr. Justice Spector when he stated in his opinion the following:

"If, as alleged in the complaint, 'Fordham' supplied a defective hoist it would be primarily responsible for its own active negligence (LaRocca v. Farrington, 301 N. Y., 247). Similarly, if it is established that ‘Fordham' employed an incompetent workman or the latter operated the hoist in a negligent manner, 'Fordham' would be liable for active negligence. In either event, 'Fordham' as a primary tort-feasor, in the absence of an indemnity agreement, cannot claim over against Donato & Gagliano, Inc. (McFall v. Compagnie Maritime Belge, 304 N. Y., 314). Moreover, where as here, 'Fordham' denies liability and the third-party complaint contains allegations which preclude liability on its part but alleges that plaintiff's injuries were caused by the third-party defendant's negligence, the third-party complaint would be insufficient to form a basis for implied indemnification from the third-party defendant (Coffee v. Flower Carting Co., 2 App. Div. 2d, 191).”

It is therefore submitted that the lower court correctly decided that a common law right of indemnification does not exist since it does not