Schellhorn v. New York State Electric & Gas Corp.

Appeal by the third-party defendant from an order of the Special Term of the Supreme Court, Albany County, denying a motion to dismiss the third-party complaint. The main complaint may be construed as charging the third-party plaintiff, an electric power company, with passive as well as active negligence resulting in plaintiff’s injury. In a situation in which the main complaint may be construed as charging the third-party plaintiff with passive negligence, even though it also charges him with active negligence, it has been the policy of this court not to dismiss such a complaint, but to leave the question of liability over until the examination of facts afforded at the trial. (Robinson v. Binghamton Gonstr. Co., 277 App. Div. 468; Johnson v. Endieott Johnson Corp., 278 App. Div. 626.) Order unanimously affirmed, with $10 costs and disbursements. Present —Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.