Opinion
June 13, 1955.
In an action to recover damages for personal injuries, incidental medical expenses and loss of services and property damage, alleged to have been caused by the negligence of respondent in failing properly to maintain a street and a manhole and manhole cover therein, order denying the motion of appellant, as third-party defendant, to dismiss respondent's third-party complaint for insufficiency, reversed, with $10 costs and disbursements, and motion granted, without costs, and with leave to respondent to serve an amended third-party complaint within twenty days after the entry of the order hereon. In the main complaint, plaintiffs alleged against respondent, as defendant, that it had control of the street and the manhole and manhole cover which were alleged to have caused the accident. In its answer respondent denied that it had such control and asserted that the street was a private street. In the third-party complaint, respondent alleged that another third-party defendant maintained a sewer in the street for the special use and benefit of the appellant's apartment houses, and that any damages which might have been sustained by plaintiffs were suffered through the negligence of appellant and such other third-party defendant, or the negligence of plaintiffs, or both, and through no negligence on the part of respondent. The third-party complaint is entirely insufficient, not only because it fails to state facts from which the negligence of appellant may be inferred ( Green v. Hudson Shoring Co., 191 Misc. 297; Shass v. Abgold Realty Corp., 277 App. Div. 346) but also because the facts stated do not support the inference that appellant is one "who is or may be liable" to respondent for all or for part of the plaintiffs' claim (see Wolf v. La Rosa Sons, 272 App. Div. 932, affd. 298 N.Y. 597; Cloud v. Martin, 273 App. Div. 769; Kile v. Riefler Bros. Contractors, 282 App. Div. 1000; Verder v. Schack, 90 N.Y.S.2d 801, and Green v. Hudson Shoring Co., supra). Nolan, P.J., Wenzel, Schmidt, Murphy and Ughetta, JJ., concur.