(dissenting). In addition to the reasons for reversal and dismissal set forth in the dissenting opinion of Bergan, J., I vote to dismiss on the further ground that on the facts alleged in the original complaint and the third-party complaint, the city is not liable over on any theory to the original defendant for any recovery the original plaintiff may obtain against that defendant.
In the original complaint against defendant laundry plaintiff alleged that through the negligent operation of its machinery waste water seeped into the basement of plaintiff’s premises. In the third-party amended complaint, the laundry alleges that the damages were caused solely by reason of the defective condition of repairs in the city’s sewer pipes and sewer mains. No basis of facts is stated on which the city could be liable for the negligent operation of the laundry’s machinery. A landlord’s covenant to repair is not a contract to indemnify.
Accordingly, for the reasons herein, I also dissent and vote to reverse the order appealed from and dismiss the third-party complaint.
Peck, P. J., Cohn and Callahan, JJ., concur in decision; Dore and Bergan, JJ., dissent in separate opinions.
Order affirmed, with $20 costs and disbursements to the respondent. [See post, p. 1027.]