Pan American World Airways, Inc. v. Peelle Co. , 254 N.Y.S.2d 808 ( 1964 )

Judgment dismissing complaint in action to recover for breach of contract against contractor unanimously affirmed, without costs to any party. While plaintiff-appellant makes a cognizable distinction between the right to recover for damages consequent on the breach of duty by the contractor for failure in its primary contractual duty to perform the contract as distinguished from any contractual or common-law obligation to indemnify, the court, nevertheless, feels constrained by the rationale in Semanchuck v. Fifth Ave. & 37th St. Corp. (290 N. Y. 412) and Walters v. Rao Electrical Equip. Co. (289 N. Y. 57). Concur — Botein, P. J., Breitel, Rabin, Stevens and Eager, J J.