
    John Griffin, Plaintiff, v. New York Central Railroad Company et al., Defendants.
    Supreme Court, Erie County,
    September 12, 1958.
    
      John P. Collins for plaintiff.
    
      Vaughan, Brown, Kelly, Turner & Symons for New York Central Railroad Company, defendant.
    
      Moot, Sprague, Marcy & Gulick for Erie Railroad Company, defendant.
   Matthew J. Jasen, J.

Defendant New York Central Railroad has moved to dismiss the cross claim of the defendant Erie Railroad Company for legal insufficiency.

Plaintiff was a fireman operating a train owned by the defendant New York Central Railroad Company when it collided with a train operated by the defendant Erie Railroad Company, causing plaintiff’s injuries. Plaintiff charges that the collision of the trains “ was caused through the negligence, carelessness and recklessness of the defendants, The New York Central Bail-road Company and the Erie Railroad Company, its agents and employees.” Thus, both defendants are charged with acts of negligence with respect to the movement of their trains which concurred in producing the accident. Since they are charged with being joint tort-feasors in pari delicto, there is no basis for indemnity. (Bueno v. National Transp. Co., 11 Misc 2d 591 [Sup. Ct., Special Term, Kings County, 1953]; Consolidated Mut. Ins. Co. v. Di Giovanna & Sons, 7 Misc 2d 203 [Sup. Ct,, Special Term, Kings County, 1957]; Shass v. Abgold Realty Corp., 277 App. Div. 346 [App. Div., 2d Dept., 1950].) Furthermore, the third-party complaint does not indicate any facts from which the third-party plaintiff could be found only passively negligent.

The motion to dismiss the third-party complaint is granted.

Submit order accordingly.  