3 A.D.2d 998 | N.Y. App. Div. | 1957
The wrong plaintiffs plead in their complaint for damage to their property from flooding is that third-party plaintiff turned on a faucet and permitted it to overflow on the floor in premises which it occupied and controlled. The third-party complaint does not plead a valid cause of action over against the landlord as third-party defendant within the active-passive theory of liability for tort. When the pleadings are read together a joint tort between third-party plaintiff and third-party defendant is to be seen; with the acts of the third-party plaintiff constituting the main element of causation. In this situation there should not be a recovery over. Order unanimously reversed, with $20 costs and disbursements to the respondent, the motion granted, and judgment is directed to be entered in favor of the third-party defendant, Plybridge Corp., dismissing the third-party complaint, with costs. Concur — Botein, J. P., Frank, Valente, McNally and Bergan, JJ. [See post, p. 1010.]