Opinion
June 4, 1963
Order, entered on October 24, 1962, denying motion to dismiss the third-party complaint, unanimously reversed, on the law, with $20 costs and disbursements to the third-party defendant-appellant, and the motion granted. If the accident was caused by defective brake repair and the operator defendant had knowledge of the defect, he would be primarily (actively) negligent. ( Mills v. Gabriel, 259 App. Div. 60, affd. 284 N.Y. 755.) If he had no such knowledge, he would not be negligent as to the plaintiff guest insofar as the brakes were concerned. ( Higgins v. Mason, 255 N.Y. 104.) There is no indemnity agreement. The third-party complaint is insufficient since defendant is not entitled to indemnity on the basis of plaintiff's complaint against him. ( Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29-30; Berg v. Town of Huntington, 7 N.Y.2d 871.)
Concur — Botein, P.J., Breitel, McNally, Stevens and Eager, JJ.