Opinion
January 24, 1956
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The third-party complaint is legally sufficient. Only a trial of the issues can determine whether plaintiff is relying upon defendant's actual or constructive notice that the equipment was in defective condition. In a proper case a jury may find that an act of omission was passive negligence entitling a third-party plaintiff to recover over against the defendant whose conduct caused the dangerous condition ( McFall v. Compagnie Maritime Belge, 304 N.Y. 314).
Concur — Peck, P.J., Breitel, Bastow and Cox, JJ.