(dissenting in part). I do not agree with the majority that the order appealed from should be modified so as to “ reinstate the cross claims based on the implied rights of indemnity ’ ’. Otherwise I concur.
As I read it, there can be no recovery against the defendant Luckenbach on this complaint unless it be on the ground that Luckenbach was guilty of what is called active negligence or, applying the term of the majority, primary negligence. However, I cannot subscribe to the position (as seems to me to be the one essentially taken by the majority) that where one is guilty of negligence — not such as is affixed by law because of acts of others, but one resulting from his own acts or improper failure to act — he may recover as against another who likewise is guilty of the same kind of negligence, but to a greater degree. Just as one may not recover if his negligence — in the slightest *232degree — contributed to an accident, so one may not cross-claim against another tort-feasor if the active negligence of the former contributes to the accident, regardless of the degree of such negligence. It is the nature or quality of the negligence of the respective tort-feasors vis-a-vis each other that is determinative of the rig'ht to claim over and not the relative degrees of such negligence. A rule of comparative negligence as between joint tort-feasors may be desirable, but I do not think the law has as yet distinguished between joint tort-feasors so as to allow recovery of one over against the other.
It may very well be, although it is not the law, that the better Avay is to deny all motions to strike cross claims and await the development of all the facts at trial. In most cases, the Amlidity of the cross claim is judged as against what the original plaintiff claims in his complaint. Though the complaint may allege active or primary negligence solely, the proof may establish liability on passive or secondary negligence only. In such case — particularly in one where a cross claim had been stricken — a defendant, for practical purposes, may stand helpless in the face of a motion to conform the pleadings to the proof. That is a real danger, but to avoid it completely would seem to require legislative action.
Valente and Bastow, JJ., concur with Bkeitel, J.; Botein P. J., concurs in result only; Babin, J., dissents in part in opinion.
Order modified, on the law, to reinstate the cross claims based on the implied rights of indemnity and, in the exercise of discretion, to grant defendant-appellant leave to replead its cross claim against defendant-respondent H. Muehlstein & Co., Inc., based upon contractual indemnity, and, as so modified, affirmed, with costs to defendant-appellant against defendants-respondents. Settle order.