Opinion
February 26, 1962
In an action to recover damages for injuries sustained as a result of a fall at a point where sewers were being installed in the roadway on Central Avenue, near Tuckahoe Road, Yonkers, New York, in which, pursuant to section 264 of the Civil Practice Act, the defendant Trumid Construction Co., Inc., asserted cross complaints against the three other defendants (the County of Westchester, Brogan Construction Co. and the Gamewell Company), and the defendants County and Gamewell asserted a cross complaint against defendant Trumid, the defendant last named appeals from a judgment of the Supreme Court, Westchester County, entered October 18, 1960, dismissing the cross complaint of defendant Trumid against defendant Gamewell. Such judgment was based on an order of said court, entered September 20, 1960, which, inter alia, granted the motion of defendant Gamewell to dismiss such cross complaint for patent insufficiency, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice. Judgment reversed, with $10 costs and disbursements; the order insofar as it granted defendant Gamewell's motion to dismiss Trumid's cross complaint against it (defendant Gamewell) is vacated, and the said motion denied; and said cross complaint is reinstated. In our opinion the complaint and Trumid's cross complaint against Gamewell alleges active and passive negligence and, therefore, impleader is proper. A cross complaint or a third-party complaint is deemed sufficient on the pleadings if there is any possibility of liability over against a third party ( Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447; Marzella v. Carlson Hoist Mach. Co., 280 App. Div. 955; Robinson v. Binghamton Constr. Co., 277 App. Div. 468; Schoenfeld v. Four Leaf Clover Realty Corp., 273 App. Div. 824). Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.