Opinion
November 27, 1961
In a negligence action by an infant to recover damages for personal injuries and by her father to recover damages for medical expenses and loss of services, the defendants, Kollner's Inc. and Canada Dry Corporation, each appeal from a separate order of the Supreme Court, Nassau County, dated July 29, 1960, denying their respective motions, pursuant to rule 106 of the Rules of Civil Practice, to dismiss the cross complaint of defendant White Rock of Nassau, Inc., against them, on the ground that it is patently insufficient. Orders reversed, without costs; motions granted, and cross complaint against defendants Kollner's, Inc., and Canada Dry Corporation dismissed, without costs. The amended complaint in the main action cannot reasonably be interpreted as including an allegation of passive negligence on the part of defendant White Rock of Nassau, Inc. Hence, it may be held liable only upon proof that it was guilty of active negligence. In such circumstances it is not entitled to be indemnified by a codefendant ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447; Harrington v. 615 West Corp., 2 N.Y.2d 476, 483; De Veglio v. Cascade Ind. Uniform Supply Co., 12 A.D.2d 980). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.