280 A.D. 168 | N.Y. App. Div. | 1952
This is an appeal by the third-party defendant from an order denying its motion to dismiss the third-party complaint for insufficiency.
The difficulty with these allegations in the third-party complaint is that the only theory on which the third-party plaintiff could be held liable to the plaintiff, would be failure to have exercised reasonable care in not anticipating that the third-party defendant would pile and store coal in this manner, which would constitute active negligence on the part of the third-party plaintiff and would render the third-party plaintiff and the third-party defendant joint tort-feasors. Under such circumstances there could be no indemnification under the doctrine of active and passive negligence.
Any doubt which might he entertained concerning this matter from the pleadings alone, is resolved by the bill of particulars. The third-party plaintiff served a bill of particulars
Plaintiff’s complaint here is not predicated upon any responsibility of the owner of the premises apart from active negligence. This is not one of those cases where defendant could be found liable merely as a property owner or for what might be termed passive negligence and be entitled to claim over against a third party whose, active negligence was solely responsible for an injury. Plaintiff’s complaint alleges negligent maintenance of defective electrical installations and of a resulting dangerous condition. If plaintiff may recover against the defendant, the liability must be one which the defendant is not entitled to call upon the third-party defendant to assume.
Defendant must either be adjudged not liable at all or must bear the full burden of liability, since the third-party defendant cannot be liable to plaintiff due to the bar of the Workmen’s Compensation Law even if they were joint tort-feasors. There is no ground or occasion for a claim over against the third-party defendant in the event of either success or failure in its defense.
The order appealed from should be reversed, with $20 costs and disbursements to appellant and judgment directed to be entered herein dismissing the third-party complaint, with costs.
Peck, P. J., Cohn, Van Voorhis and Heffernan, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to appellant, the motion granted, and judgment is directed to be entered dismissing the third-party complaW herein, with costs.