Opper v. Tripp Lake Estates, Inc. , 84 N.Y.S.2d 461 ( 1948 )

Per Curiam.

On August 6, 1944, plaintiff was a paying guest at a camp or summer resort maintained by defendant Green Mansions, Inc. (hereinafter called “ Green Mansions ”) and was run over by a truck while reclining on the lawn of the camp grounds. The truck was owned by defendant Tripp Lake Estates, Inc. At the time of the accident the truck was being operated in the business of Green Mansions by its employee, the impleaded defendant Mazone.

Plaintiff sued the corporate defendants to recover damages for personal injuries on the grounds of negligence in the operation of the truck. On motion Green Mansions impleaded Mazone on a cross-claim for indemnity against any liability in favor of plaintiff.

The right of the master to recover over against a negligent servant for liability imposed derivatively is essentially one for indemnity. However, this right is not available to a master who is himself guilty of negligence based upon his own acts that contribute to the wrong causing damage or injury to a third party (Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; Fedden v. Brooklyn Eastern District Terminal, 204 App. Div. 741, 744).

There was evidence in the case sufficient to establish negligence in the operation of the truck by Mazone. There was additional evidence, however, to support an inference that Mazone in driving upon the lawn was acting on the instructions or direction of his supervisor, who was also the plant superintendent for Green Mansions. This practice was followed as part of Mazone’s daily routine in picking up linens at the camp, despite the fact that guests were accustomed to recline upon the lawn to the knowledge of Mazone’s employer.

Unless the negligent operation of the truck was the sole producing cause of plaintiff’s injuries, Green Mansions may not obtain indemnity from Mazone. On this record, however, we feel that the trial court was fully justified in finding that Green Mansions was itself a primary wrongdoer and actively at fault so as' to forfeit any right to indemnity from its employee. Accordingly, we think that the dismissal of its cross complaint against Mazone was proper in the circumstances of this case.

We likewise find no error in the dismissal of plaintiff’s complaint as against defendant Tripp Lake Estates, Inc.

The judgment appealed from should be affirmed in all respects, with costs and disbursements to plaintiff-respondent and the impleaded defendant-respondent Mazone as against defendant-appellant Green Mansions, Inc., and to defendant-respondent Tripp Lake Estates, Inc., as against plaintiff-appellant.