— In an action to recover damages for wrongful death and for conscious pain and suffering, arising out of the alleged negligence of defendants, the defendant and third-party plaintiff, the Board of Education, appeals from an order of the Supreme Court, Suffolk County, entered September 14, 1959, granting, with leave to plead over, the third-party defendant’s motion to dismiss the third-party complaint. Order reversed on the law, with $10 costs and disbursements, and motion denied. In our opinion, the allegations of the main complaint are sufficiently inclusive to permit a recovery by plaintiff against the said defendant and third-party plaintiff based upon its passive negligence and upon the primary active negligence of the third-party defendant, both of which are sufficiently pleaded, at least in the second cause of action contained in the third-party complaint. Under such circumstances, the third-party complaint should not have been dismissed (Weisman v. Hymns, 5 A D 2d 1000). Nolan, P. J., Beldoek, Christ and Brennan, JJ., concur.
Eide v. Board of Education of Union Free School District No. 24
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