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  5. 11 A.D.2d 220 (1960)
 

BUSH TERM. BLDGS. v. LUCKENBACH S. S.

11 A.D.2d 220 (1960)

Bush Terminal Buildings Co., et al., Plaintiffs, v. Luckenbach Steamship Co., Inc., Defendant and Third-Party Plaintiff-Appellant. Atlantic Ship Rigging Co., Inc., et al., Third-Party Defendants-Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

July 5, 1960.

Attorney(s) appearing for the Case

William M. Kimball of counsel (Hervey C. Allen and John S. Rogers with him on the brief; Burlingham, Hupper & Kennedy, attorneys), for appellant.

J. B. Sheftel of counsel (Joseph J. Corn, Jr., with him on the brief; Eisman, Lee, Corn, Sheftel & Bloch, attorneys), for H. Muehlstein & Co., Inc., respondent.

VALENTE and BASTOW, JJ., concur with BREITEL, J.; BOTEIN P. J., concurs in result only; RABIN, J., dissents in part in opinion.

BREITEL, J.

Defendant Luckenbach appeals from an order dismissing its cross claims against defendants Atlantic and Muehlstein as legally insufficient. Involved on the appeal is the much litigated question of the right to indemnity based on distinctions between "active" and "passive" negligence, or, better, between primary and secondary negligence.

Plaintiffs sue for property damages resulting from a fire...

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