VISCOMI v. STATE ELEVATOR CO., INC

Order unanimously reversed, with $20 costs and disbursements, and third-party complaint dismissed, with costs to appellant. Under the allegations of plaintiff's complaint, respondent can be held liable only if its active negligence is proved to have been the proximate cause of plaintiff's injuries. Under such circumstances, respondent as third-party plaintiff has no right of indemnity from an alleged joint tort-feasor.

Concur — Peck, P.J., Cohn, Bastow, Botein and Rabin, JJ.