Stipulation Waiving Certification 85 Pursuant to Section 170 of the Civil Practice Act, it is hereby Stipulated that the foregoing as hereinbefore printed consist of true and correct copies of the notice of appeal, the orders appealed from, and all the papers used before the Court below and the whole thereof, now on file in the office of the Clerk of the Supreme Court of the State of New York, County of Bronx. Certification thereof pursuant to Section 616 of the Civil Practice Act is hereby waived. quey Dated, New York, June 1958. 86 BERNARD HELFENSTEIN Attorney for Third-Party Defendant-Appellant, HAMPTON & DIETEL Attorneys for Third-Party 7 AD 2N1713 d To be argued by SANFORD SAIDEMAN New York Supreme Court APPELLATE DIVISION_FIRST DEPARTMENT ANTHONY BERNARDO, Plaintiff, -against FORDHAM HOISTING EQUIPMENT COMPANY Defendants. FORDHAM HOISTING EQUIPMENT COMPANY, INC., Third-party Plaintiff-Respondent, -against DONATO & GAGLIANO, INC., Third-party Defendant-Appellant. BRIEF ON BEHALF OF THIRD-PARTY & GAGLIANO, INC. This is a combined appeal by the third-party defendant-appellant, Donato & Gagliano, Inc., from two orders of Special Term relating to the third-party complaint. The first order, entered December 18, 1957, denied appellant's motion to dismiss the third-party complaint; the second order, entered March 31, 1958, denied appellant's motion for an order directing respondent to serve an amended third-party complaint, separately stating the different causes of action alleged therein. In the interest of brevity, the third-party plaintiff-respondent, Fordham Hoisting Equipment Company, will be referred to herein as “Fordham” and the third-party defendant-appellant, Donato & Gagliano, Inc., will be referred to as “Donato." Facts The plaintiff, an employee of Donato, instituted this action to recover for personal injuries allegedly sustained by him on June 26, 1956 (4752).* The plaintiff's complaint states in essence that the accident occurred as a result of the negligence of the defendants Fordham and Albert Smith, its employee, in leasing to Donato a defective hoist, in employing a hoist operator who was infirm, and who operated the hoist improperly while plaintiff was attempting to repair it (4951). The answer of Fordham consisted in essence of a general denial and a cross-complaint against the co-defendant Albert Smith (56-60). Thereafter, Fordham issued against Donato a third-party summons and complaint which states in substance that Donato was in control of the leased equipment at the time of the accident and that Albert Smith was an employee of Donato and not of Fordham (35-45). The third-party complaint seeks recovery over against Donato based upon common law indemnification and also by virtue of a clause in the agreement leasing the hoisting equipment to Donato, wherein the lessee covenants and agrees : “To keep free and harmless LESSOR from liability for any property damage and personal Numerals in parentheses refer to folios in the record on appeal. injury caused indirectly or directly, by the leased equipment and materials while under the control and custody of the LESSEE” (3940). The third-party complaint then concludes by stating in paragraph “9”: “9. That if the plaintiff recovers a judgment against this third-party plaintiff, the third party plaintiff will be entitled to recover the amount of such judgment, together with costs, disbursements and reasonable counsel fees expended in the defense of the action, against the third party defendant, by reason of the primary negligence of the third party defendant, its agents, servants or employees in the operation, maintenance and control of the hoisting equipment; in that the third party defendant, by its agents, servants or employees, employed incompetent men to operate, maintain and control the equipment; in that, contrary to the laws, statutes and ordinances of the State and City of New York, the third party defendant permitted the said hoisting equipment to be used for the purpose of carrying passengers; in that, notwithstanding the terms of the agreement hereinabove referred to, the third party defendant, by its agents, servants or employees voluntarily undertook to make repairs to the hoisting equipment although the third party plaintiff alleges that no repairs were necessary or required; and in that the third party defendant is liable over to the third party plaintiff by reason of the terms of the agreement, providing for indemnification from liability for any property damage and personal injury |