
    Moses Steeley, Respondent, v. City of New York, Appellant and Third-Party Plaintiff-Respondent. Belpark Construction Corp., Third-Party Defendant-Appellant.
   In an action by Moses Steeley against the City of New York to recover damages for personal injuries, the defendant city served a third-party complaint on Belpark Construction Corp., Steeley’s employer, for judgment over pursuant to an agreement of indemnity. Steeley and a fellow workman were working in a newly constructed and unused sewer line. Under instructions of Belpark they cut through a solid bulkhead wall. Black liquid flowed through the opening, as a result of which Steeley was injured. The sewer line had been constructed under a contract between Belpark and the city. The city had directed Belpark not to cut the bulkhead until a later date. In disobedience of that order Belpark directed Steeley to make the cut, as a result of which he was injured. An engineer employed by the city was present on the job but did not stop Steeley from performing the act. There is no evidence to show that the engineer had any power or authority to interfere with Steeley. After trial without a jury the trial court found for Steeley, holding that the city was negligent in failing to provide him with a safe place to work, and that at most its negligence was passive. In respect of the third-party complaint the trial court held that Belpark’s negligence was active. Judgment was entered in favor of Steeley against the city and in favor of the city against the third-party defendant. The city and Belpark appeal from the adverse portions of the judgment. Judgment reversed on the law, with one bill of costs to appellants, and judgment granted in favor of appellants on the merits. The findings of fact below are affirmed. We hold there is no evidence of any breach of duty or actionable negligence on the part of the city. Nolan, P. J., Murphy, Ughetta and Hallinan, JJ., concur; Kleinfeld, J., dissents and votes to affirm.  