Opinion
January 26, 1948.
The infant plaintiff was injured while ascending from the basement on the premises of defendant Four Leaf Clover Realty Corp., as a result of cellar doors closing and striking his head before he reached the sidewalk. A companion action was brought by the mother for loss of services. Defendant owner Four Leaf Clover Realty Corp., pursuant to section 193-a of the Civil Practice Act, served a third party complaint upon defendant Waldbaum, Inc., the lessee, alleging that the accident was due to the primary and active negligence of the third party defendant, while the negligence of the third party plaintiff was secondary and passive. The third party defendant thereupon moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action, pursuant to subdivision 5 of rule 106 of the Rules of Civil Practice. The motion was granted. Defendant Four Leaf Clover Realty Corp. appeals. Order and judgment reversed on the law, with $10 costs and disbursements to appellant, and the motion denied, with $10 costs. The cross complaint alleges control in the impleaded party defendant. Therefore, as a matter of pleading, it sets forth facts sufficient to constitute a cause of action and may not be dismissed on motion. Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur. [See post, p. 868.]