Solomon v. Marseilles Hotel Corp.

1 A.D.2d 766, 149 N.Y.S.2d 581, 1956 N.Y. App. Div. LEXIS 6565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1956
• Status: Published

Opinion

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The third-party complaint is legally sufficient. Only a trial of the issues can determine whether plaintiff is relying upon defendant’s actual or constructive notice that the equipment was in defective condition. In a proper case a jury may find that an act of omission was passive negligence entitling a third-party plaintiff to recover over against the defendant whose conduct caused the dangerous condition (McFall v. Compagnie Maritime Belge, 304 N. Y. 314). Concur — Peck, P. J., Breitel, Bastow and Cox, JJ.