Opinion
January 20, 1959
Judgment in favor of the third-party plaintiff, the City of New York, against the third-party defendant is reversed on the law and the third-party complaint is dismissed, with costs to the appellant. The permit issued by the Department of Marine and Aviation which provides that the third-party defendant will assume full responsibility for any damage to property or injury to persons resulting from this privilege, cannot be construed as unequivocally expressing an intent to indemnify the third-party plaintiff against its own negligence. ( Inman v. Binghamton Housing Auth., 3 N.Y.2d 137; Thompson-Starrett Co. v. Otis Elev. Co., 271 N.Y. 36.) The third-party plaintiff was primarily negligent and therefore is not entitled to indemnification, either under the contract or at common law.
Concur — Botein, P.J., Breitel, M.M. Frank, Valente and McNally, JJ.