Opinion
March 12, 1965
The third-party plaintiff-appellant appeals from an order which dismissed its complaint on the merits for failing to state a cause of action. The defendant was engaged in digging a trench. The decedent, an employee of the third-party defendant-respondent, entered the trench, which had not been shored up, and was killed by a cave-in. A comprehensive statement of the facts is set forth in the decision of Special Term ( 45 Misc.2d 592). The only theory upon which the plaintiff could recover, under the allegations of the complaint, would be a showing of active negligence by the appellant in failing to perform the nondelegable duty of shoring up the walls of the trench as required by section 241 Lab. of the Labor Law and the implementing rules. (See 12 NYCRR 23.8; Rufo v. Orlando, 309 N.Y. 345, 350.) The determination of this factual issue at the trial will either establish or fail to establish active negligence on the part of the appellant but, in either event, there would be no basis for a judgment over against the third-party defendant-respondent. Order affirmed, with $10 costs. Reynolds, Taylor, Aulisi and Hamm, JJ., concur.