(dissenting). Involved here is the construction of an indemnity clause in a long, comprehensive agreement that was expertly drawn on behalf of the city. In such an agreement an intention ‘ ‘ that one tort feasor should provide to a partner in the wrong, indemnity against liability arising from failure of the other tort feasor to perform a positive action duly imposed by statute ” must be unequivocally expressed (Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412, 421, 422; see, also, Walters v. Rao Elec. Equip. Co., 289 N. Y. 57; Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y. 36).
The critical language in the contract under consideration in this case will be found in subdivisions (a) and (c) of paragraph 14 — the former dealing generally with responsibility for injuries to persons and damage to property, and the latter dealing more specifically with the contractor’s responsibility for damages to the premises and injuries to employees. These provisions obligate the contractor to indemnify the city from liability on account of “ any neglect, fault or default of the Contractor ’ ’ and for all claims arising out of the work performed by the contractor “whether such damages or injuries be attributable to the negligence of the Contractor or his employees or otherwise ” or “ whether due to the negligence, fault or default of the Contractor or not ”. There is no doubt that the obligation to hold the city harmless for the consequences of the contractor’s acts is clearly expressed. However, *513no such unequivocal undertaking to indemnify the city for the consequences of the city’s own negligence appears in either clause.
The quoted phrases do not resolve the ambiguity. They are capable of at least two diverse interpretations. It may be argued either that the clauses under consideration are intended to assume responsibility not only for the negligence of the contractor and his employees but for the negligence of others; or, and more probably, that the additional language is designed to include within the scope of the indemnity claims for damages or injuries which might arise against the contractor irrespective of negligence*. And language subject to alternative meanings cannot be said to be unequivocal.
One must speculate as to why the same expert draftsman who so explicitly spelled out the contractor’s liability for his own negligence did not obligate the contractor to indemnify the city for “ negligence of the contractor or his employees or negligence of the City or its employees or otherwise ” (suggested addition to par. 14, subd. [a] emphasized). Such a clear and unequivocal statement of indemnification, had that been the intent of the parties, would have suggested itself repeatedly in the drafting of the several paragraphs dealing with the contractor’s responsibilities.
If the intent to indemnify the city against the consequences of its own negligence is not manifest in subdivisions (a) and (c) of paragraph 14, it cannot be supplied by paragraph 15. That paragraph merely makes absolute the obligation of the contractor to indemnify the city pursuant to subdivisions (a) and (c) of paragraph 14, eliminating certain considerations that might otherwise tend to exculpate the contractor.
Judge Cabdozo deplored a judicial tendency “ to match the colors of the case at hand against the colors of many sample cases spread out upon their desk ”, the sample nearest in shade supplying the applicable rule (Cardozo, Nature of the Judicial Process, p. 20). We are doing nothing less when we place the relevant clauses in this case, in Turner Constr. Co. v. Rockwood Sprinkler Co., 275 N. Y. 635, and in the Semanchuck, Walters and Thompson-Starrett cases (supra) in parallel columns and dissect them for similarities and differences. The very fact that we are driven to such expedients would indicate that on a fair reading the indemnification clauses in issue here are not clear and unambiguous.
*514There are no surrounding facts and circumstances in this case, as were present in Salamy v. New York Central System (1 A D 2d 27) that would transfuse a clear intent into the otherwise inconclusive indemnity provisions of the contract under consideration. Nor is there here a clear and explicit undertaking by the contractor, as was expressed in the agreement construed in People v. Westchester Colprovia Corp. (1 A D 2d 724, 725) which undertook to protect the State and to pay “ all amounts, damages, costs, and judgments which may be recovered against said State or its officers or agents or which the said State of New York may be called upon to pay to any person or corporation by reason of any damages, direct or indirect, arising or growing out of the doing of said work, or from the negligence, non-feasance, mis-feasance or malfeasance of any officer, agent or employee of the State, or Department thereof
The lawyers who specialize in this field are well aware that clauses such as those under consideration in this ease demand laborious judicial parsing, in an effort to distill the intent of the parties. Surely, at this stage, it is not too much to require them to stop waging verbal duels and to state unmistakably whether or not a contract purports to burden the indemnitor with another’s negligence.
The judgment should be affirmed.
Peck, P. J., and Frank, J., concur with Valente, J.; Botein, J., dissents and votes to affirm in opinion, in which Breitel, J., concurs.
Judgment modified in accordance with the opinion herein and, as so modified, affirmed. Settle order on notice.
The word “ otherwise ” refers to the way or manner in which the liability arises. If persons other than the contractor or his employees were meant, the natural word to use would be “ others ”.