3 A.D.2d 827 | N.Y. App. Div. | 1957
The pleadings in this ease are susceptible to proof at the trial that, while the city endeavored to have the general contractor perform in accordance with the scheduled progress, its efforts were not sufficient to absolve it of liability to the plaintiff. In such instance, the city might still have a valid claim over against the general contractor in view of the latter’s agreement “to indemnify and hold the City harmless” from claims of other contractors for damages sustained “through any act or omission” on its part. Therefore, the issue of liability over should be left to the trier of the facts (Cosgrove v. City Ice & Fuel Co., 275 App. Div. 1030). Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. Concur — Peek, P. J., Breitel, Prank, Yalente and McNally, JJ.