Stewart v. New York Telephone Co.

—Order unanimously modified on the law and as modified affirmed with costs to plaintiff-respondent, in accordance with the following memorandum: County Court properly affirmed the judgment awarding plaintiff damages based upon the jury verdict. However, it erred in reversing the trial court’s dismissal of the third-party action. Liability of the third-party defendant, Niagara Mohawk, cannot be imputed solely on the basis of its admission of joint ownership of the utility pole. The third-party action is not the same cause of action set forth in the original complaint because it involves the breach of an alleged independent duty owed to the third-party plaintiff by the third-party defendant (Stafford v *908Sibley, Lindsay & Curr Co., 280 App Div 495, 499). The record contains no proof that the third-party defendant was in any way responsible for the maintenance of the pole or the appurtenant guide wire. Without some proof of actual negligence on the part of Niagara Mohawk, the third-party complaint against it must be dismissed. (Appeals from order of Niagara County Court, Hannigan, J.—negligence.) Present—Callahan,, J. P., Doerr, Green, Balio and Davis, JJ.