(dissenting). We dissent from the conclusion of the majority. We agree that no question of fact is presented but believe that on the uncontroverted facts the law requires judgment in favor of the defendant.
The indemnity clause pursuant to which plaintiff was cast in damages to the parties held responsible for the accident was quite different from that in plaintiff’s contract with defendant and on which it relies in this action. And it is net disputed that while defendant had knowledge of plaintiff’s contract with the Transit Authority the significant clause is in no way embodied in the contract between the parties in this suit. It would therefore follow that the rights of the parties are governed solely by the contract which they made. As the majority points out, that clause is limited to indemnity for loss on account of personal injuries resulting from the work performed under the contract.
This was not such a loss. Plaintiff was not compelled to pay for anything it or its subcontractor did or failed to do under the contract between them. Its payment resulted solely from an undertaking it assumed to the owner of the property on which *44the work was performed. Nowhere in the contract between the parties is the consequence of loss from such an obligation assumed by the defendant. While it is true that plaintiff assumed this liability in connection with the work it contracted to do, it was not a loss, in the words of the contract between the parties to the subcontract, “ resulting from performance of the work covered by this contract.” In fact, the result of the action for injuries clearly demonstrates that the loss did not result from the work but from an obligation assumed by one of the parties. The Geniino case (11 N Y 2d 690) cited in the majority opinion does not hold otherwise.
The order should be reversed and summary judgment granted to defendant on its cross motion.
Breitel and Stevens, JJ., concur with Bastow, J.; Botein, P. J., and Steuer, J., dissent in opinion.
Order, entered on January 3, 1963, so far as appealed from modified, on the law, to the extent of granting plaintiff’s motion for summary judgment, and, as so modified, affirmed, with $20 costs and disbursements to plaintiff-appellant.