Klein v. Bargray Construction Corp. ( 1956 )

It is difficult to ascertain from the meager facts pleaded whether in this case the third-party plaintiff was required to maintain a sidewalk shed. Therefore, we need not determine whether the failure to provide such a shed constitutes active or passive negligence. In any event, the complaint is broad enough to admit of recovery by plaintiff upon acts of negligence separate and apart from the alleged failure to comply with the Administrative Code provisions for the maintenance of a sidewalk shed. There is a possibility that the proof upon the trial will establish that the third-party plaintiff was a passive tort-feasor entitled to recovery over from the third-party defendant as an active tort-feasor. Determination of the Appellate Term and the judgment and order of the City Court unanimously reversed, with costs to the appellant in this court and in the Appellate Term, and the motion to dismiss the third-party complaint denied, with $10 costs. Concur — Peck, P. J., Breitel, Botein, Rabin and Bergan, JJ.