
    Russell Frey, Plaintiff, v. Bethlehem Steel Corp., Respondent, and G. C. Depot Construction Co., Appellant.
   Order, Supreme Court, New York County, entered on June 23, 1971, unanimously reversed, on the law, the motion of defendant-appellant G. C. Depot Construction Co. to dismiss the cross complaint of defendant-respondent Bethlehem Steel Corp. granted, and the cross complaint dismissed. Defendant-appellant shall recover of defendant-respondent $50 costs and disbursements of this appeal. There is but one injury claimed by plaintiff in his complaint against both defendants and, except for the additional averment that Bethlehem was the supplier of defective steel rods, the other acts of causal affirmative negligence are indivisibly alleged against both defendants. This is not an “active-passive negligence” situation, and is not rendered so by an attempt in plaintiff’s bill of particulars to apportion the specifications of negligence between the defendants. We find here no successive independent acts of tort-feasors or separable damage, as described in the two cases (Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 N Y 2d 57; Musco v. Conte, 22 A D 2d 121) relied on by Special Term. “It is well established that the culpability of the party seeking indemnity determines whether recovery over will be permitted (Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., 9 N Y 2d 426; O’Dowd v. American Sur. Co., 3 N Y 2d 347) —-that is, the party seeking indemnity must not be in pari delicto with the party against whom such recovery is sought (Bush Term. Bldgs. Co. v. Luckenbach S. S. Co., supra); in other words, he must be a passive, as opposed to an active, tort-feasor.” (Jackson v. Associated Dry Goods Corp., 13 N Y 2d 112, 116). Both defendants are accused in pari delicto, and .the cross complaint, therefore, may not stand. Concur — MeGivern, J. P., Markewich, Murphy, Steuer and Tilzer, JJ.  