Opinion
January 9, 1952.
Appeal from Supreme Court.
The third-party complaint adopts as a part thereof the entire complaint in the main action wherein, on the facts there alleged, it is made to appear that the third-party plaintiff was an active wrongdoer in bringing about the plaintiff's accidental injuries. Nowhere else in the pleading, when its conclusory statements of law and fact are ignored, as is required in testing the sufficiency of its statement of fact to constitute a cause of action ( Cole v. Levy, 212 App. Div. 84; New Amsterdam Cas. Co. v. Mobinco, 219 App. Div. 486; Sardone v. Diamond Holding Co., 244 App. Div. 300) do we find anything which as a matter of law is sufficient to otherwise characterize the third-party's wrongdoing in its relation to the accident. For aught that is alleged the charge of negligence on the part of Scovill in carelessly leaving the handtruck in the hallway of the building would still leave the third-party plaintiff remiss in its active duty to keep it free from obstruction and reasonably safe as to the plaintiff's presence there. There is naught to show that the tenant had any control of the hallway or that the landlord had in any wise relinquished or dedicated it to the third-party defendant. If he had done so or if the tenant had rendered it unsafe surreptitiously or under such circumstances that it became hazardous despite due care on the part of the landlord, a different situation would be presented, but no such facts are stated. Order reversed on the law and facts and motion granted, with $10 costs, with leave to the third-party plaintiff to serve an amended complaint within ten days after due notice of the entry of an order hereon. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.