Opinion
November 9, 1970
In a negligence action to recover damages for personal injuries, etc., (1) defendants appeal from a judgment of the Supreme Court, Queens County, entered December 2, 1969, in favor of plaintiffs upon a jury verdict on the issue of liability and upon a stipulation fixing damages in the amount of $24,500; (2) defendant Peck's Stationers, Inc., further appeals from a resettled judgment of said court (resettled by order entered April 9, 1970 so as to include a decretal provision dismissing said defendant's cross complaint against defendant Halbreich); and (3) defendant Halbreich also appeals from so much of the resettled judgment as is in favor of plaintiff against him. Appeals from original judgment, entered December 2, 1969, dismissed as academic. That judgment was superseded by the resettled judgment. Resettled judgment, entered April 9, 1970, modified, on the law, by (1) striking therefrom the decretal paragraph which dismissed the cross complaint of defendant Peck's Stationers, Inc., and substituting therefor a provision that that cross complaint is severed from the action and a new trial thereon is granted; and (2) adding a provision thereto that the cross complaint of defendant Leo D. Halbreich is dismissed. As so modified, resettled judgment affirmed. The questions of fact upon the cross complaint of defendant Peck's Stationers, Inc. have not been considered on this appeal. Plaintiff is herewith allowed a single bill of costs against both defendants jointly; and defendant Peck's Stationers, Inc., is allowed costs against defendant Leo D. Halbreich to abide the event of the new trial upon the former's cross complaint. While she was shopping in defendant Peck's stationery store, plaintiff slipped on a glob of floor wax and suffered bodily injuries. Two days prior to the accident defendant Halbreich waxed Peck's floor. Plaintiff commenced this action against both defendants, who cross-claimed against each other. Each cross complaint alleged a theory of active-passive tort-feasor liability, each defendant claiming indemnification against the other. The trial court never charged the jury on the cross claims, on this trial of the issue of liability only, and before the case went to the jury the court reserved decision on Peck's motion for judgment on its cross claim. The jury found in favor of plaintiff against both defendants. By stipulation, the amount of the damages was fixed and judgment was entered for plaintiff against both defendants, but no disposition was made therein of the cross claims. On motion, the court resettled the judgment. The resettled judgment dismissed Peck's cross complaint; the trial court said it directed that because it did not want to disturb the jury's verdict with respect to that cross claim. No disposition was made of Halbreich's cross complaint. Concededly the jury verdict against Halbreich was based on a theory of active negligence; and, since there was no contract of indemnity between the codefendants, Halbreich was not entitled to indemnity from Peck. On the record before us it cannot be said why the trial court dismissed Peck's cross claim. In view of the barren record on this point and the trial court's apparent confusion as to whether the issues raised by Peck's cross complaint were decided by the court or the jury, we find it necessary to grant a new trial of the issues raised by Peck's cross complaint. Christ, P.J., Rabin, Hopkins, Munder and Benjamin, JJ., concur.