Opinion
April 2, 1969
Order entered December 17, 1968, granting plaintiff partial summary judgment against defendant under the first cause of action unanimously reversed, on the law, with $50 costs and disbursements, and the motion for summary judgment denied. Plaintiff's claim against defendant under this cause is based upon a straight indemnity clause whereby defendant agreed to hold plaintiff "harmless from all liability, loss, cost or damage" arising out of defendant's performance as plaintiff's subcontractor on a portion of certain construction work. Third parties have made claims for damage arising out of a mishap on the job, but, as far as is disclosed by the record, at the time of institution of the action, matters had not gone further than the filing of claims with plaintiff. This is not an action for declaration of the rights of the parties, but is, in effect, a claim over by plaintiff against defendant. Plaintiff is as yet entitled to nothing from defendant, and the cause is asserted prematurely.
Concur — Stevens, P.J., Eager, Capozzoli, Markewich and Steuer, JJ.