Opinion
August 1, 1961
Appeal from an order of a Special Term, Supreme Court, Albany County. This case involves the problem of active and passive negligence and the right of recovery over. The main complaint charges that defendant third-party plaintiff General Erectors negligently built a high platform contrary to accepted standards, as a result of which plaintiff was injured. The third-party complaint against Behr-Manning. Company alleges that Behr-Manning was in exclusive control of the platform when plaintiff was injured, and that any negligence resulting in plaintiff's injury was the "active, affirmative and primary negligence" of Behr-Manning. We have several times held that in testing the sufficiency of a third-party complaint of this kind, the prime complaint is examined to determine whether it is possible under its allegations to impose a liability on the third-party plaintiff for passive negligence alone; and that if this possibility exists the case is to be tried to determine that question. ( Schellhorn v. New York State Elec. Gas Corp., 283 App. Div. 678; Johnson v. Endicott Johnson Corp., 278 App. Div. 626; Robinson v. Binghamton Constr. Co., 277 App. Div. 468. ) We read the prime complaint here as excluding the possibility of finding third-party liability on the theory of passive negligence alone. There is, it is true, an allegation which, separated from context, reads as though it might be stating passive negligence, i.e., that third-party plaintiff was negligent "(i) In failing to give any notice or warning of said latent defect and concealed danger". But "said" latent defect and concealed danger was pleaded to have been created by third-party plaintiff, and there is no possibility that passive negligence could follow in such a situation. Thus the court at Special Term correctly dismissed the third-party complaint. ( Bernardo v. Fordham Hoisting Equip. Co., 6 A.D.2d 619, affd. 6 N.Y.2d 733; Coffey v. Flower City Carting Excavating Co., 2 A.D.2d 191, affd. 2 N.Y.2d 898.) Order affirmed, with $10 costs. Bergan, P.J., Gibson, Reynolds and Taylor, JJ., concur.