The complaint contains two counts or causes of action. The first is to recover the sum of $27,488.56, which plaintiff alleges it has, in effect, been obliged to pay to the city of New York, owing to the failure of the defendant to properly perform a subcontract for part of the contract work which the plaintiff had agreed with the city of New York to perform, together with the sum of $530.75 costs recovered against it by the city. On the 18th day of June, 1909, the plaintiff entered into a contract with the city of New York for certain surface construction work on the Manhattan bridge over the East river, which the city was then constructing; and with the consent of the city the plaintiff employed the defendant to do the asphalting embraced in its contract. Through the negligence of the employees of the defendant in overheating a kettle of tar, or tar and asphalt, during the performance of the work, a fire was started damaging ties and other work to an extent which required the expenditure by the city for replacement and repairs of the amount, less the item of costs, for which this action is brought, and in an action by the plaintiff against the city to recover on its contract for said work the city pleaded said amount, and another item relating to another fire, as damages caused by the failure of the plaintiff to take “ample precautions” to protect the finished work against injury by fire as required by the express provisions of the contract. The plaintiff pleads the material provisions of its contract with the city and alleges, among other things, that by the express provisions of its contract with the defendant, the defendant undertook and agreed to accept all the conditions and perform all the obligations with respect to said work imposed upon the plaintiff by its contract with the city, and that it thereby became the duty of the defendant to take ample precautions to protect the work and the structure, so far as completed, against injury by fire, and to make good at its own cost and expense and to the satisfaction of the engineer representing the city the parts of the work damaged through its failure to take such precautions, as the plaintiff was expressly obligated to do by its contract with the city. The plaintiff alleges that after the city interposed its answer in the *401action by the plaintiff to recover the balance of the contract price of the work, pleading that the city was obliged to expend said amount for repairing and replacing the damaged parts of the work, the plaintiff duly notified the defendant in writing of the commencement and pendency of said action and of the issues therein involved, and particularly of the claim made by the city for an offset or deduction from the contract price of the work on account of the damages caused by fire, and duly demanded that the defendant undertake the conduct of the action in so far as it affected said damages claimed on account of the fire, and that it defend the plaintiff against said claim made by the city, and that the plaintiff would look to it for indemnity.
This court in that action held that the city was entitled to retain and deduct from the amount due the plaintiff under the contract the cost of such replacement and repairs (Lord Electric Co. v. City of New York, 160 App. Div. 344), and the judgment in that action is conclusive on defendant with respect to the amount the city was entitled to deduct and with respect to its right to make the deduction from the contract price provided the defendant was responsible for the fire. (City of New York v. Corn, 133 App. Div. 1; City of New York v. Lloyd, 148 id. 146.)
The second count is to recover $11,500 for damages alleged to have been caused to property of the plaintiff by fire owing to the negligence and carelessness of the defendant in managing furnaces used for heating asphalt, and in failing to guard and control the fires therein during the performance of said work. It is not alleged that the fire which caused the damages to the plaintiff’s property was the same fire as that which damaged the property of the city.
The grounds of the demurrer are (1) that causes of action have been improperly united, in that a cause of action on a contract of indemnity, express or implied, has been united with a cause of action for tort, not arising out of the same transaction or transactions connected with the same subject of action; and (2) that it appears upon the face of the first cause of action that the facts are insufficient to constitute a cause of action'.
*402There is no merit in the second ground of demurrer. It is quite clear that the first count of the complaint sufficiently alleges a cause of action, which may briefly be stated to be one for the failure of the defendant to perform its contract obligation to replace and repair any work damaged by defendant during the construction, and to take proper precautions to protect the work from injury by fire; and that the amount of the liability has been determined in the action by the plaintiff against the city of which the defendant had due notice and an opportunity to defend against the claim made by the city therein. -
The demurrer for misjoinder of causes of action was overruled by the Special Term on the theory that regardless of whether the first cause of action is on contract or in tort, it is for an injury to property, and that both causes of action are for injuries to property within the contemplation of the provisions of section 3343, subdivision 10, of the Code of Civil Procedure, and that such causes of action may be joined under section 484 of the Code of Civil Procedure. I am unable to agree with that theory. The first cause of action is not for an injury to the plaintiff’s property. The only manner in which the plaintiff’s property has been injured on account of the facts therein alleged is by the plaintiff’s being unable to collect the amount due and owing to it from the city on account of the defendant’s failure to perform its sub-contract in the manner agreed. That, I think, is not an injury to property within the legislative definition. In one view of the question it is unnecessary to decide whether the first cause of action is for negligence or is for the breach of a contract, express or implied, because in either event the causes of action as pleaded have been improperly joined, for it is not alleged that they arose out of the same transaction, or transactions connected with the same subject of action, and, therefore, even if the cause of action be for negligence it could not be joined with the other tort action. It may be, however, that the damage to the plaintiff’s property which is the subject of the second cause of action was caused by the same fire which damaged the property of the city, and that on that theory they both arise from the same cause, and, therefore, it is proper that we should decide whether the objection raised by the demurrer *403can be obviated by amendment, or whether it will become necessary to sever the action. If the damages to which the plaintiff was subjected, as alleged in the first count, were due to any act or omission on the part of the defendant, without the existence of any contract obligation or duty on its part to the plaintiff, then it might well be claimed that the plaintiff is merely seeking to enforce by subrogation a cause of action for negligence, and that it would, therefore, not be an action on contract, but one sounding in tort (City of Rochester v. Campbell, 123 N. Y. 405, 413; Oceanic S. N. Co. v. Co. T. E., 134 id. 461; 144 id. 663; Connecticut Mutual Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265); but where, as here, the action proceeds on the theory that the defendant is liable as an indemnitor, and the liability is predicated upon a contract, express or implied, and upon the ground that as between the parties the primary duty or obligation, on which plaintiff has been obliged to respond in damages, rested upon the defendant, then the action is, I think, based on contract. (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475; Dunn v. Uvalde Asphalt Paving Co., 175 id. 214; Prescott v. Le Conte, 83 App. Div. 482; affd., 178 N. Y. 585; City of Rochester v. Montgomery, 72 id. 65; Village of Port Jervis v. First Nat. Bank, 96 id. 550. See, also, Phœnix Bridge Co. v. Creem, 102 App. Div. 354; affd., 185 N. Y. 580; City of Rochester v. Campbell, supra, 411.) In the action by the plaintiff against the city, the foundation of the city’s right to deduct the amount for part of which the plaintiff is now suing was a breach of the plaintiff’s contract which was evidenced by the negligence resulting in the fire which caused the damages; and so here the action is predicated upon a breach of the defendant’s contract duty to the plaintiff which was imposed upon defendant in the same form in which the duty was imposed upon the plaintiff in favor of the city; and to the same extent; and as was held by this court in Prescott v. Le Conte (supra), it is not necessary that the liability shall be on the same contract in order that one may be liable over to another. The liability on the first cause of action being upon contract the cause of action could not be joined with the second which is for negligence.
*404It follows, therefore, that the interlocutory judgment should be reversed, with leave to plaintiff to sever the action (Code Civ. Proc. § 497) upon the payment of costs of the appeal and of the demurrer.
McLaughlin and Hotchkiss, JJ., concurred; Ingraham, P. J., and Dowling, J., dissented.