Opinion
October 19, 1942.
Action to recover damages from two defendants for personal injuries and for loss of services. The respondent landlord served a cross-complaint for a recovery over from the appellant gas company in the event that she be compelled to respond to plaintiffs in damages. Order denying the appellant's motion to dismiss the cross-complaint as insufficient in law, and order granting leave to serve an amended answer asserting the cross-claim, in so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and the motion to dismiss the cross-complaint granted, with ten dollars costs, without prejudice to the right of the respondent to revive her complaint on the trial if she be advised to do so on the facts then developed. The plaintiffs' complaint alleges acts for some of which the appellant might be responsible and for some of which the landlord might be solely responsible. The appellant would not be liable over to the defendant landlord for damages sustained by plaintiffs due solely to negligent acts of the landlord, and such acts are alleged in the plaintiffs' complaint. There is nothing in the record to show that a judgment may ever be entered in favor of plaintiffs solely for damages caused by the appellant gas company. It would seem that defendants are bound to the status of joint tortfeasors, which is alleged in the complaint, and in such case there is no right of indemnity. ( Nichols v. Clark, MacMullen Riley, Inc., 261 N.Y. 118, 122, 123; Schwartz v. Crawford, 261 App. Div. 825.) Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.