Putvin v. Buffalo Electric Co.

3 A.D.2d 805, 160 N.Y.S.2d 386, 1957 N.Y. App. Div. LEXIS 6283

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1957
• Status: Published

Opinion

Order reversed on the law, with $10 costs and disbursements and motion to dismiss third-party complaint granted, with $10 costs. Memorandum: The motion of the third-party defendant to dismiss the third-party complaint of the defendant and third-party plaintiff was denied. The plaintiffs’ complaints charge active and primary negligence against the defendant-third-party plaintiff by alleging that the accident was caused by the carelessness and negligence of the defendant and its employees in the conduct of its work upon the premises of the third-party defendant. The plaintiffs make no claim that the defendant-third-party plaintiff negligently failed to discover and guard against a dangerous condition created by the third-party defendant. They make no claim that the defendant-third-party plaintiff had knowledge or notice of any dangerous condition created by the third-party defendant and negligently failed to guard against it. Moreover, the defendant-third-party plaintiff disclaims knowledge or notice, actual or constructive, of any dangerous condition created on the premises by the third-party defendant. According to the pleadings, the plaintiffs may recover against the defendant-third-party plaintiff only by proving active negligence of the employees in the conduct of the work. In such case, there may be no indemnification by the third-party defendant. All concur. (Appeal from an order of Erie Special Term denying a motion by the third-party defendant to dismiss the third-party amended complaint, in a negligence action.) Present — MeCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.