Wilson v. New York State Electric & Gas Corp.

Appellate Division of the Supreme Court of New York

Wilson v. New York State Electric & Gas Corp.

23 A.D.2d 915, 258 N.Y.S.2d 944, 1965 N.Y. App. Div. LEXIS 4278

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

DecidedMay 6, 1965

StatusPublished

Cited by2 cases

This text of 23 A.D.2d 915 (Wilson v. New York State Electric & Gas Corp.) 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

Wilson v. New York State Electric & Gas Corp., 23 A.D.2d 915, 258 N.Y.S.2d 944, 1965 N.Y. App. Div. LEXIS 4278 (N.Y. Ct. App. 1965).

Pincite

Opinion

Aulisi, J.

Appeal from an order of the Supreme Court at Special Term, County of Madison, which denied third-party defendant’s motion to dismiss the third-party complaint. Plaintiff, an employee of the third-party defendant, seeks damages for injuries he contends he sustained when he allegedly was struck by a bolt, current or [916]*916charge of electricity from defendant’s high tension wires. The main complaint charges that the defendant and third-party plaintiff had “full notice and knowledge ” that heavy wrecking equipment was being used in the area where the plaintiff was employed and was injured “ or in the exercise of due care, should have had, full notice and knowledge”. One of the theories of the complaint is that the defendant was negligent in permitting heavy machinery to be used in proximity to its high tension wires, poles and installations without taking precautions to prevent injury to the workmen. In Be LilU v. Niagara Mohawk Power Gorp. (11 A D 2d 839, 840) we said: “‘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.’” Both complaints, and particularly the third-party complaint, should be liberally construed at the pleading stage (Straub V. Village of Livonia, 22 A D 2d 749). In the state of the instant pleadings we agree with Special Term that the disposition of the third-party complaint should await the determination of the factual issues upon the trial (Jackson v. Associated Bry Goods Gorp., 13 N Y 2d 112, 117). Order affirmed, with $20 costs. Gibson, P. J., Reynolds, Taylor and Hamm, JJ., concur.

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Aulisi, J.

Appeal from an order of the Supreme Court at Special Term, County of Madison, which denied third-party defendant’s motion to dismiss the third-party complaint. Plaintiff, an employee of the third-party defendant, seeks damages for injuries he contends he sustained when he allegedly was struck by a bolt, current or [916]*916charge of electricity from defendant’s high tension wires. The main complaint charges that the defendant and third-party plaintiff had “full notice and knowledge ” that heavy wrecking equipment was being used in the area where the plaintiff was employed and was injured “ or in the exercise of due care, should have had, full notice and knowledge”. One of the theories of the complaint is that the defendant was negligent in permitting heavy machinery to be used in proximity to its high tension wires, poles and installations without taking precautions to prevent injury to the workmen. In Be LilU v. Niagara Mohawk Power Gorp. (11 A D 2d 839, 840) we said: “‘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.’” Both complaints, and particularly the third-party complaint, should be liberally construed at the pleading stage (Straub V. Village of Livonia, 22 A D 2d 749). In the state of the instant pleadings we agree with Special Term that the disposition of the third-party complaint should await the determination of the factual issues upon the trial (Jackson v. Associated Bry Goods Gorp., 13 N Y 2d 112, 117). Order affirmed, with $20 costs. Gibson, P. J., Reynolds, Taylor and Hamm, JJ., concur.

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Bluebook (online)

23 A.D.2d 915, 258 N.Y.S.2d 944, 1965 N.Y. App. Div. LEXIS 4278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-new-york-state-electric-gas-corp-nyappdiv-1965.

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