Yagerv.Dock and Coal Co. Inc.

Appellate Division of the Supreme Court of New York, Third DepartmentMay 16, 1960
11 A.D.2d 592 (N.Y. App. Div. 1960)

May 16, 1960

Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.

Appeal from an order of the Supreme Court dismissing defendant's amended third-party complaint against third-party defendants. The plaintiff's complaint seeks to recover for personal injuries sustained in a fall while she was attempting to assist her father in docking a cruiser at defendant's dock. It alleges failure of defendant to supply a dock attendant, failure to answer standard signal, allowing accumulation of sea weed, failure to remove the same and in suffering the dock to become and remain slippery. We view these as allegations of active negligence. Because the complaint uses such blanket phrases as "among other things" and being "otherwise careless and negligent" does not justify an inference of passive negligence. Moreover, as the court below held, the only negligence alleged against the third-party defendant is that the boat churned up the seaweed and deposited it on the dock, in which event there would be no liability on the part of defendant. We see nothing in the original complaint and the amended third-party complaint which alleges a situation calling for indemnity. Order unanimously affirmed, with $10 costs.