The contractor Marcato might have been held liable on the cross complaint if the facts sufficiently disclosed that the sole cause of the accident was lack of a repair that Marcato had the contractual duty to remedy. Such proof would have established that Marcato was primarily negligent, and the landlord only passively negligent and secondarily liable (see Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 417, affd. 298 N.Y. 686). Here, however, the proof was insufficient to satisfactorily establish that the accident was caused by Marcato's failure to perform his repair contract. The landlord had the burden of proof on the cross claim and it failed to establish that it was not in pari delicto and, therefore, it should not have indemnity. Judgment, insofar as it awarded Knickerbocker Village, Inc., a recovery against Marcato Elevator Co., on the cross claim reversed, with costs to the appellant Marcato Elevator Co., Inc., and the cross complaint dismissed, with costs to defendant Marcato Elevator Co., Inc. Judgment in favor of plaintiff Jennie Brown affirmed, with costs against the defendant Knickerbocker Village, Inc.
Peck, P.J., and Van Voorhis, J., dissent and vote to affirm. Settle order on notice.