Turner Construction Co. v. Alvord , 159 N.Y.S.2d 814 ( 1957 )

On its face the second cause of action sets forth sufficiently the primary, active negligence of the third-party defendants, and Special Term properly denied the motion to dismiss for insufficiency, with leave to renew at the trial of the action. The indemnity provisions of the successive subcontracts, as quoted in the first cause of action, do not appear to bear out as clearly and affirmatively as would be desirable, the ultimate allegations to the effect that such indemnity provisions were for the use and benefit of the third-party plaintiff. However, a trial must be had in any event, and the allegations in the first cause of action admit of the possibility that upon the trial competent evidence may be produced that will sustain the third-party plaintiff’s theory. Order denying the motion to dismiss the complaint and the separate causes of action, unanimously affirmed, with $20 costs and disbursements to the respondent. Concur — Botein, J. P., Rabin, Frank, Valente and McNally, JJ.