274 A.D. 945 | N.Y. App. Div. | 1948
In an action to recover damages for negligence, alleged to have caused the death of plaintiff’s intestate, order denying motions by plaintiff and third party defendants to dismiss amended third party complaints for legal insufficiency, and further denying plaintiff’s alternative motion to sever the issues raised by the third party complaints, insofar as appealed from, affirmed, with one bill of $10 costs and disbursements to defendants-respondents, and one bill of $10 costs and disbursements to the third party plaintiffs-respondents, payable by plaintiff-appellant and the third party defendants-appellants jointly. Plaintiff-appellant’s complaint alleges, inter alia, negligence on the part of defendants-respondents in the operation and maintenance of the building in which the accident which caused the death of plaintiff’s intestate occurred, in suffering a large quantity of combustible matter to accumulate. This allegation may be read as charging defendants-respondents with passive negligence only. We cannot determine, on the present pleadings, that the third party plaintiffs and defendants were at most joint tort-feasors with respect to the active negligence therein alleged, or that it will be established on the trial, as the third party plaintiffs allege, that they had parted with possession and control of the premises and that no negligence on their part caused the accident complained of. Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.