273 A.D. 899 | N.Y. App. Div. | 1948
In an action to recover damages for injuries alleged to have resulted from falling on icy porch steps, order dismissing the cross complaint of defendant property owner against defendant construction contractor, and the judgment entered thereon, affirmed, with $10 costs and disbursements. Plaintiff brought the action against the owner of the property and against the contractor, whose negligence in the construction of the roof and gutter over the steps was alleged to have caused the leaking of the water which formed the ice upon the steps. Defendant owner served a cross complaint, under section 264 of the Civil Practice Act, against the defendant contractor based upon the same alleged negligent construction. Heretofore, upon motion by the defendant contractor, the plaintiff’s complaint was dismissed as against him. (271 App, Div. 893, affd. 296 N. T. 1020.) The defendant contractor moved to dismiss the cross complaint upon two grounds: First, that it failed to set forth sufficient facts to constitute a cross complaint against him; and second, that the cross complaint was not maintainable for the reason that the plaintiff’s complaint had been so dismissed. The order appealed from grants the motion to dismiss upon the second stated ground and denies the motion in other respects. We are of opinion that the motion should have been granted upon the first stated ground. Dismissal of the complaint as against one défendant determines nothing as between that defendant and a codefendant, and does not preclude the enforcement of a claim alleged by cross complaint. (Ostrander v. Hart, 130 N. T. 406, 412; Lobee v. Williams, 226 App. Div. 211, 215; Hewlett v. Van Voorhis, 196 App. Div. 322, 329-330.) The cross complaint alleges that the work alleged to have been negligently done by defendant contractor was performed five months prior to the alleged accident and was then accepted and paid for by the defendant owner, and does not allege that it resulted in a hidden defect unknown to defendant owner. Coneededly the property was in the control of the defendant