Opinion
October 3, 1955.
In an action to recover damages for personal injuries sustained when plaintiff Nettie Seidner fell on a defective highway, and by her husband for loss of services, the City of New York cross-complained against its codefendant, appellant Marcam Contracting Co., Inc., which was reconstructing sewers under contract with the defendant city. Order denying appellant's motion to dismiss the complaint and the cross complaint for insufficiency affirmed, with $10 costs and disbursements. The complaint and cross complaint sufficiently allege, respectively, that appellant was negligent and is liable over as the active and primary wrongdoer. ( Zeuner v. Village of Bronxville, 278 App. Div. 790; Toth v. Kennedy Smith, Inc., 259 App. Div. 855, affd. 285 N.Y. 579; Lobello v. City of New York, 268 App. Div. 880, affd. 294 N.Y. 816; Schlemovitz v. City of New York, 274 App. Div. 1064; Rubin v. City of New York, 277 App. Div. 1138.) Nolan, P.J., MacCrate, Beldock, Murphy and Ughetta, JJ., concur. [See post, p. 1105.]