Opinion
October 27, 1952.
In this action to recover damages for personal injuries sustained by plaintiff Christopher Marzella when he fell into a mortar mixing machine which he was using or attending in the course of performance of his duties as a mason tender, defendant, who was the owner of the machine, served a summons and third-party complaint on respondent, said plaintiff's employer, as third-party defendant, alleging that if plaintiff recover judgment against said defendant, the latter will be entitled to indemnification from the third-party defendant. The appeal is by said defendant from an order granting the third-party defendant's motion to dismiss the third-party complaint on the ground that it fails to state facts sufficient to constitute a cause of action, and to sever the third-party action from the main action. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The complaint alleges acts and omissions, upon proof of some of which appellant might be held liable for passive negligence, or for secondary liability, by reason of active negligence or primary liability on the part of respondent. Under such circumstances the third-party complaint should not have been dismissed. (See Robinson v. Binghamton Constr. Co., 277 App. Div. 468; cf. Logan v. Bee Builders, 277 App. Div. 1040, and Johnson v. Endicott Johnson Corp., 278 App. Div. 626.) Nolan, P.J., Johnston, Adel, Wenzel, and Schmidt, JJ., concur.