Opinion
January 26, 1960
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss the third-party complaint on the ground of insufficiency is granted, with $10 costs. A reading of the complaint, as well as the third-party pleading, requires the conclusion that the third-party plaintiff, if liable at all, can only be held responsible as an active or primary tort-feasor. Under the circumstances a judgment over could not be sustained. (See Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 456-457.)
Concur — Rabin, J.P., M.M. Frank, Valente, McNally and Stevens, JJ.