Opinion
July 11, 1961
In two actions (which were consolidated by court order) to obtain indemnity for damages paid by plaintiffs for which it is claimed the defendant is primarily liable, one being a common-law action based on the theory of an implied promise in law, and the other being a contract action based on a written contract between the plaintiff Central Hudson Gas Electric Corporation and the defendant, pursuant to which defendant had agreed to indemnify said plaintiff and to save it harmless, the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County, entered August 9, 1960, upon a decision of the court, in favor of the defendant, dismissing both actions on the merits, after a nonjury trial. A prior action against the plaintiff Central for the wrongful death of one Joseph T. Zuppa, who had been employed as a crane operator by the defendant, resulted in a judgment in favor of his administratrix against Central ( Zuppa v. Central Hudson Gas Elec. Corp., 277 App. Div. 1044, affd. 302 N.Y. 827). Plaintiff Central, and its insurance carrier, the coplaintiff Indemnity Insurance Company of North America, both contributed to the payment of $31,711.97 in satisfaction of the judgment, and they brought these two actions against defendant for indemnity. Decedent had met his death as the result of an electric shock when the boom of the crane operated by him came into contact with an uninsulated high tension electric wire maintained by Central upon its premises. Decedent and the crane were on its premises for the purpose of doing certain work thereon pursuant to a written contract between Central and defendant. Judgment affirmed, with costs. In our opinion, in the Zuppa action the plaintiff Central was cast in liability for its own active negligence; hence, it is barred from obtaining indemnity implied in law ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447; Goggin v. Central Hudson Gas Elec. Corp., 8 A.D.2d 741, affd. 7 N.Y.2d 819). Nor may Central obtain reimbursement based on the contract between it and the defendant, since the provisions of such contract may not be construed so as to require defendant to indemnify Central for active negligence on its part ( Semanchuck v. Fifth Ave. 37th St. Corp., 290 N.Y. 412; Thompson-Starrett Co. v. Otis El. Co., 271 N.Y. 36). Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.