Opinion
November 28, 1955.
Present — Wenzel, Acting P.J., MacCrate, Beldock, Murphy and Ughetta, JJ.
On December 6, 1950, appellant and respondent contracted in writing whereby respondent agreed to furnish appellant with tires and tire equipment for appellant's busses for five years from January 1, 1951. The contract required respondent to provide protection against liability for accidental death, injuries and occupational diseases of its workmen occurring while engaged in respondent's work, and to indemnify appellant and save it harmless from any such liability. On June 16, 1953, plaintiff, an employee of respondent engaged in respondent's work under the contract, fell in appellant's garage. It is alleged in the complaint that plaintiff's injuries were caused by an oily, greasy, slippery floor, of which appellant had notice. Appellant seeks indemnity from respondent based on the stated contractual provision. This is an appeal from an order granting respondent's motion to dismiss the third-party complaint for insufficiency. Order unanimously affirmed, with $10 costs and disbursements. In our opinion, the sole purpose for the provision was to make respondent liable to furnish workmen's compensation to its employees, even when they were working in appellant's garage and in the event they might be deemed appellant's employees while so engaged. That it was not intended that respondent agree to protect appellant against liability for appellant's negligence is clear for two reasons: (1) the indemnity clause is limited only to respondent's employees and then only while engaged in respondent's work; and (2) the clause is not limited to appellant's liability growing out of respondent's work.