Schellhorn v. New York State Electric & Gas Corp.

Appellate Division of the Supreme Court of New York

Schellhorn v. New York State Electric & Gas Corp.

283 A.D. 678, 127 N.Y.S.2d 182, 1954 N.Y. App. Div. LEXIS 4881

Appellate Division of the Supreme Court of the State of New York·Decided January 27, 1954·Published·Cited by 9 cases

Opinion

Appeal by the third-party defendant from an order of the Special Term of the Supreme Court, Albany County, denying a motion to dismiss the third-party complaint. The main complaint may be construed as charging the third-party plaintiff, an electric power company, with passive as well as active negligence resulting in plaintiff’s injury. In a situation in which the main complaint may be construed as charging the third-party plaintiff with passive negligence, even though it also charges him with active negligence, it has been the policy of this court not to dismiss such a complaint, but to leave the question of liability over until the examination of facts afforded at the trial. (Robinson v. Binghamton Gonstr. Co., 277 App. Div. 468; Johnson v. Endieott Johnson Corp., 278 App. Div. 626.) Order unanimously affirmed, with $10 costs and disbursements. Present —Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.

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Appeal by the third-party defendant from an order of the Special Term of the Supreme Court, Albany County, denying a motion to dismiss the third-party complaint. The main complaint may be construed as charging the third-party plaintiff, an electric power company, with passive as well as active negligence resulting in plaintiff’s injury. In a situation in which the main complaint may be construed as charging the third-party plaintiff with passive negligence, even though it also charges him with active negligence, it has been the policy of this court not to dismiss such a complaint, but to leave the question of liability over until the examination of facts afforded at the trial. (Robinson v. Binghamton Gonstr. Co., 277 App. Div. 468; Johnson v. Endieott Johnson Corp., 278 App. Div. 626.) Order unanimously affirmed, with $10 costs and disbursements. Present —Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.

Schellhorn v. New York State Electric & Gas Corp., 283 A.D. 678, 127 N.Y.S.2d 182, 1954 N.Y. App. Div. LEXIS 4881 (N.Y. Ct. App. 1954).

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Opinion

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