MacDOWALL v. KOEHRING BASIC CONSTR. EQUIP.


49 N.Y.2d 824 (1980)

Harry H. MacDowall, Respondent, et al., Plaintiff, v. Koehring Basic Construction Equipment et al., Defendants-Appellants and Third-Party Plaintiffs-Appellants. Merritt-Meridian Corp., Third-Party Defendant-Respondent.

Court of Appeals of the State of New York.

Decided March 18, 1980.


Attorney(s) appearing for the Case

William F. McNulty and Anthony J. McNulty for appellants.

V. Frank Cline for plaintiff-respondent.

Eugene J. McGuinness for third-party defendant-respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs. In view of the concession by Koehring's trial counsel that the indemnity clause presented a jury question only if the underlying action was "submitted to the jury on a matter of something other than design", it was not error for the Trial Judge, who later charged the jury on design negligence only, to dismiss the third-party complaint.

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