Stafford v. John W. Cowper Co. ( 1939 )

Order affirmed, with ten dollars costs and disbursements. Memorandum: We do not construe the fifth paragraph of the defendant’s subcontract with George H. Drake, Inc., as one indemnifying the defendant against an action such as that alleged in the complaint in the instant case where the defendant alone is charged with negligence. If damages are awarded against the defendant herein, it cannot recover over against the subcontractor upon the basis of his subcontract. Nor is a right of indemnity based upon primary and secondary liability sufficiently shown to warrant bringing in the Drake Company as an additional party defendant. Furthermore, the circumstance appeals to our discretion that to grant the defendant’s motion will probably delay the trial of the action. All concur. (The order denies a motion to bring in another party defendant in a negligence action.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.