OPINION OF THE COURT
Silverman, J.I agree with Justice Lupiano’s conclusions except that I would dismiss the cross claim against the third-party defendant Jerome Mackey’s Judo, Inc. and grant 100% indemnification to the other defendants as against defendant GardinerGerber, thus allocating 100% of the liability to GardinerGerber.
Justice Sandler suggests that our decision granting 100% indemnification to the retailer and intermediate wholesaler represents survival of the distortions that existed before the development of the present doctrine of strict products liability, citing Martin v Dierck Equip. Co. (43 NY2d 583, 590). However, as I think we all agree, while an injured plaintiff’s claim based on strict products liability against persons with whom he has no contractual privity is a tort claim, parties like a retailer or intermediate wholesaler may still have a contractual breach of warranty claim against persons with whom they are in contractual privity.
I agree with Justice Lupiano that Miyazaki was an independent contractor and not an employee of Mackey and that thus Mackey is not liable on principles of respondeat superior to third parties for injuries caused by Miyazaki’s negligence in the performance of this work which was not inherently dangerous. The holding by the Workmen’s Compensation Board that Mackey was liable to plaintiff employee as an employer for workmen’s compensation under the Workmen’s Compensation Law is not necessarily inconsistent with this as the issue is somewhat different. (E.g. Workmen’s Compensation Law, § 56.)
For the same reason the alleged admission in Mackey’s pleadings that plaintiff employee’s injuries "arose out of and in the course of plaintiff’s employment for” Mackey does not *82preclude Mackey’s contention that plaintiff was Miyazaki’s employee for purposes of third-party liability; that pleading admission was made in the course of a counterclaim based on Mackey’s payment under the workmen’s compensation award.
Justice Lupiano’s opinion appears to base Mackey’s liability in this case on a finding that Mackey was negligent in hiring Miyazaki because Miyazaki was incompetent to do the work. I do not believe that issue is properly in the case; it was not raised by the pleadings and I do not think it was litigated, nor did the Trial Judge make such a finding. I therefore think that there is no basis in the present litigation to hold Mackey liable.
The judgment of the Supreme Court, New York County (Fein, J.), entered December 23, 1977, in plaintiffs’ favor in the sum of $150,000, adjudging second third-party defendants Gardiner Steel Corp. and J. Gerber & Company, Inc. to be liable for 50%, defendant Al Charyn, Inc. to be liable for 20%, defendant York Bros. Wholesale Hardware Co., Inc. to be liable for 20% and third-party defendant Jerome Mackey’s Judo, Inc. to be liable for 10%, should be modified, on the law, in the following respects:
A. The apportionment of the percentages of liability among all the defendants in said judgment is stricken;
B. All claims by any defendant against third-party defendant Jerome Mackey’s Judo, Inc. for contribution or indemnity, are dismissed; and as among defendants and third- and fourth-party defendants, no portion of the liability shall be apportioned against said third-party defendant Jerome Mackey’s Judo, Inc.;
C. Judgment on the merits is granted in favor of defendant A1 Charyn, Inc. on its claim for full indemnity against defendant York Bros. Wholesale Hardware Co., Inc., and in turn judgment on the merits is granted in favor of defendant York Bros. Wholesale Hardware Co., Inc. on its claim for full indemnity against second third-party defendants Gardiner Steel Corp. and J. Gerber & Company, Inc.;
D. Any defendant or third-party defendant who has paid more than its share of the judgment as adjudicated herein shall be reimbursed therefor by third-party defendants who have paid less than their share thereof;
And the judgment is otherwise affirmed, without costs.