Opinion
June 15, 1959
In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal, as limited by appellant's brief, is from an order granting respondent's motion to dismiss appellant's cross complaint on the ground that it does not state facts sufficient to constitute a cross complaint (Rules Civ. Prac., rule 106, subd. 4). Order affirmed, with $10 costs and disbursements. In our opinion, the allegations of active negligence charged against appellant and respondent justify the conclusion that they are joint tort-feasors in pari delicto and, therefore, the cross complaint is insufficient. ( Fox v. Western New York Motor Lines, 257 N.Y. 305; Middleton v. City of New York, 276 App. Div. 780, affd. 300 N.Y. 732.) Wenzel, Acting P.J., Beldock, Murphy and Ughetta, JJ., concur; Kleinfeld, J., dissents and votes to reverse the order and to deny the motion.