Jasenzak v. Schipp

278 A.D. 660, 102 N.Y.S.2d 473, 1951 N.Y. App. Div. LEXIS 4259

Opinion

In an action to recover damages for wrongful death, as a result of the negligent repair of a chimney flue, in that it was blocked and caused an accumulation of poisonous gases, order granting respondent’s motion to dismiss the complaint as to him, and the judgment entered thereon, reversed on the law, with $10 costs and disbursements, and the motion, under rule 106 of the Rules of Civil Practice, to dismiss the complaint for insufficiency, denied, without costs. The complaint sufficiently alleges affirmative negligence for which the contractor may be liable, notwithstanding that the injuries were not those of the contractee. (Brown v. Welsbaeh Gorp., 301 N. Y. 202; Adams V. White Gonstr. Co., 299 N. Y. 641.) Nolan, P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.