Thompson v. Board of Education of Enlarged City School District

Appellate Division of the Supreme Court of New York

Thompson v. Board of Education of Enlarged City School District

23 A.D.2d 520, 255 N.Y.S.2d 345, 1965 N.Y. App. Div. LEXIS 5067

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 1965

StatusPublished

This text of 23 A.D.2d 520 (Thompson v. Board of Education of Enlarged City School District) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. Board of Education of Enlarged City School District, 23 A.D.2d 520, 255 N.Y.S.2d 345, 1965 N.Y. App. Div. LEXIS 5067 (N.Y. Ct. App. 1965).

Pincite

Opinion

Reynolds, J.

Appeal from an order of the Supreme Court, Otsego County, denying appellant’s motion to dismiss a third-party complaint. On September 13, 1962, the plaintiff, a high school student, allegedly was injured when struck by another student in an altercation which occurred aboard a school bus. In October, 1963 plaintiff brought suit against respondent Board of Education and respondent in turn brought a third-party action against appellant, the owner of the school bus, to whom by contract the board had delegated the duty of transportation. Plaintiff’s complaint may be construed as charging the third-party plaintiff, the Board of Education, with passive as well as active negligence in connection with the incident resulting in plaintiff’s injuries. Where the main complaint charges the third-party plaintiff with passive negligence despite the fact that it also may charge 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 proof presented at the trial is evaluated and classified. While the third-party complaint could be more specific, viewing it liberally the court will infer that the board is asserting therein that it is only passively negligent and that the third-party defendant is actively negligent. Order affirmed, with $10 costs. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.

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Reynolds, J.

Appeal from an order of the Supreme Court, Otsego County, denying appellant’s motion to dismiss a third-party complaint. On September 13, 1962, the plaintiff, a high school student, allegedly was injured when struck by another student in an altercation which occurred aboard a school bus. In October, 1963 plaintiff brought suit against respondent Board of Education and respondent in turn brought a third-party action against appellant, the owner of the school bus, to whom by contract the board had delegated the duty of transportation. Plaintiff’s complaint may be construed as charging the third-party plaintiff, the Board of Education, with passive as well as active negligence in connection with the incident resulting in plaintiff’s injuries. Where the main complaint charges the third-party plaintiff with passive negligence despite the fact that it also may charge 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 proof presented at the trial is evaluated and classified. While the third-party complaint could be more specific, viewing it liberally the court will infer that the board is asserting therein that it is only passively negligent and that the third-party defendant is actively negligent. Order affirmed, with $10 costs. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.

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Bluebook (online)

23 A.D.2d 520, 255 N.Y.S.2d 345, 1965 N.Y. App. Div. LEXIS 5067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-board-of-education-of-enlarged-city-school-district-nyappdiv-1965.