Bankers Indemnity Insurance Company, Plaintiff, v. John P. Cruise, Defendant and Third-Party Plaintiff-Respondent. Jamaica Tire Stores, Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendants

Bankers Indemnity Insurance Company, Plaintiff, v. John P. Cruise, Defendant and Third-Party Plaintiff-Respondent. Jamaica Tire Stores, Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendants. [MAJORITY] In an action to recover damages for personal injuries, order of the County Court, Nassau County, denying appellant’s motion to dismiss the third-party complaint, reversed on the law, with $10 costs and disbursements, and the motion granted, without costs. Under the allegations of the plaintiff’s complaint the respondent can be held liable to plaintiff only if his active negligence is shown to have been a proximate cause of the injuries. (Cloud v. Martin, 273 App. Div. 769.) Under such showing the respondent has no right of indemnity from a joint tortfeasor. The matter alleged in the third-party complaint may be shown as a complete defense to plaintiff’s complaint. Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.