The City of New York appeals to this court by permission of the Appellate Division, First Department, from its nonunanimous order affirming an order of the Supreme Court, New York County, denying the city’s motion to dismiss the amended third-party complaint for failure to state a cause of action. The following question has been certified: “ Was the order of Special Term proper in denying the third-party defendant’s motion to dismiss the amended third-party complaint herein pursuant to Rule 106 of the Rules of Civil Practice on the ground that it appears on the face thereof that the amended third-party complaint does not state facts sufficient to constitute a cause of action? ”
The enactment of section 193-a of the Civil Practice Act has greatly simplified third-party practice but has not in any way changed underlying principles of tort liability. Under it the joinder of a nonparty is permitted whenever he is or may be liable to the defendant for all or part of plaintiff’s claim against him (Wolf v. La Rosa & Sons, 272 App. Div. 932, affd. 298 N. Y. 597).
In the third-party amended complaint now before this court, it is alleged that at all times mentioned the city “ owned, controlled and maintained premises known as 522 East 119th Street, in the Borough of Manhattan, City and State of New York, and all the sewer gutters, sewer mains and sewer pipes of said premises ’ ’ and that under the terms of its lease with the defendant laundry it covenanted to “ maintain and keep in good condition and repair, all the sewer gutters, sewer mains and sewer pipes in * * * [said] premises ” and that it failed to do so following due and timely notice-and demand.
Significantly enough, there is no allegation of any lease provision that the city as landlord had retained the right to re-enter the premises for the purpose of making repairs or that it had ever done so. It has long been the rule that a landlord’s covenant to repair, standing alone, imposes upon the landlord no liability in tort either to the tenant or a third party. Such a liability is an incident to occupation and control (Restatement, Torts, § 357), which, is not deemed reserved by a covenant to repair (Cullings v. Goetz, 256 N. Y. 287), nor may it be treated as a contract of indemnity unless specifically so stated — and here *425it is not (Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36). Indemnification against one’s own negligence must be clearly expressed (Employers Liability Assur. Corp. v. New York Linen Supply & Laundry Co., 239 N. Y. 560; Manhattan Ry. Co. v. Cornell, 54 Hun 292, affd. 130 N. Y. 637).
According to the complaint of the original plaintiff herein, the plaintiff alleges that his injuries were due to the negligent and careless maintenance and operation of the laundry machinery by reason of defective plumbing causing the seepage of waste water into his premises, inflicting the damage complained of and constitutes a nuisance, the continuance of which should be restrained and enjoined. Assuming this to be true — for indeed we must on a motion of this sort — that allegation casts the third-party plaintiff as original defendant in the roll of an active tort-feasor and, as such, is not in a position to compel contribution or indemnification by the city, absent an agreement so to do. Bead in such light, the third-party complaint fails to state a cause of action against the city on any theory and must be dismissed.
We pass on no other question.
The order of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein. The question certified is answered in the negative.