
    Michael Hayes, as Administrator of the Estate of Josephine Thompson, Deceased, Respondent, v. Raymond Kramer, Inc., Respondent, Jacob Blumenson, as Executor of Doris Blumenson, Deceased, Appellant-Respondent, and City of New York, Respondent-Appellant.
    Argued April 28, 1966;
    decided June 9, 1966.
    
      
      James M. McLaughlin, Jr., for appellant-respondent.
    
      J. Lee Rankin, Corporation Counsel (Edward J. McLaughlin and Seymour B. Quel of counsel), for respondent-appellant.
    
      Benjamin H. Siff and Gerald C. Barton for plaintiff-respondent.
    
      Willian F. McNulty and Allen M. Taylor for defendant-respondent.
   Judgment reversed in part, without costs, and matter remanded to the Supreme Court, Bronx County, with directions to enter judgment in favor of the city on its cross claim against defendant Blumenson for indemnity. Since defendant Blumenson constructed the faulty sidewalk and the city had only constructive notice of the defective condition, the two may not be said to be in pari delicto so as to prevent the application of the active and passive negligence rule. (See Baruch v. City of New York, 15 N Y 2d 782; Sobel v. City of New York, 9 N Y 2d 187, 193.) In all other respects, judgment affirmed.

Concur; Chief Judge Desmond and Judges Fhld, Burr®, Bergan and Keating. Judges Van Vqorhis and Scileppi dissent, in part, and vote to reverse and to dismiss the complaint as against the city upon the ground that there is no evidence of actionable negligence.  