Active misconduct of the defendant sub-contractor was the affirmative cause of the plaintiff's injuries. Liability of the codefendant general contractor was the result of omission of its secondary duty to protect the plaintiff from such violence. (SeeDe Haen v. Rockwood Sprinkler Co., 258 N.Y. 350, 352.) "Indemnity is given to the person morally innocent but legally liable, as against the actual wrongdoer whose misconduct has brought the liability upon him." (Bohlen, Studies in the Law of Torts, p. 512.) From that point of view, the contract between the codefendants required the defendant sub-contractor to indemnify the defendant general contractor against the claim of the plaintiff, as the Appellate Division held.
RIPPEY, LEWIS and DESMOND, JJ., concur with CONWAY, J.; LOUGHRAN, J., dissents in opinion in which LEHMAN, Ch. J., and FINCH, J., concur.
Judgment accordingly. *Page 63