Opinion
July 11, 1951.
Present — Taylor, P.J., McCurn, Kimball, Piper and Wheeler, JJ.
Order reversed on the law, with $10 costs and disbursements and motion granted, with $10 costs, with leave to the third-party plaintiffs to serve an amended complaint within twenty days after service of a copy of the order herein with notice of entry thereof, upon payment of the costs of the motion and of this appeal. Memorandum: We regard the third-party complaint as alleging only passive negligence. ( Middleton v. City of New York, 300 N.Y. 732.) All concur, Taylor, P.J., not voting. (Appeal from an order denying a motion by the third-party defendant to dismiss the third-party complaint, in an action to recover damages for the alleged contamination of a well.)