Tabor v. Stewart

277 A.D.2d 1075

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1950
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Saratoga County, denying a motion to dismiss the third-party complaint on the ground that it does not state a cause of action. The action was brought against Stewart alone to recover damages for the death of plaintiff’s intestate, an employee of the third-party defendants, who fell through the ceiling of premises owned by Stewart. Stewart has served a third-party complaint pursuant to the provisions of section 193-a of the Civil Practice Act, which is the pleading under attack and which alleges that the premises where the accident occurred were in the exclusive possession and control of the third-party defendants who had purchased the same under contract from Stewart, the owner of record, and that the negligent acts complained of, if any, were primarily and actively those of such third-party defendants. The pleading sets forth a good cause of action and may not be dismissed on motion. (Wischnie v. Dorsch, 296 N. Y. 257; Schoenfeld v. Four Leaf Glover Realty Corp., 273 App. Div. 824; Mirsky v. Seaich Realty Co., 256 App. Div. 658.) Although it may develop on the trial that plaintiff’s intestate was an employee of the third-party defendants and that compensation has been awarded for his injuries and death, that fact, if it be a. fact, will not necessarily defeat Stewart’s common-law right of recovery. {Westchester Lighting Co. v. Westchester Co. Small Estates Corp., 278 N. Y. 175; see, also, Robinson v. Binghamton Constr. Co., ante, p. 468, decided herewith.) Order unanimously affirmed, with $10 costs to the defendant and third-party plaintiff against the third-party defendants. Present — Foster, P. J., Brewster, Deyo, Bergan and Coon, JJ.