Straub v. Village of Livonia

Judgments and order unanimously reversed on the law and facts, with costs, and motion denied, without costs. Memorandum: The complaint in both actions alleges that the accident was caused by the negligence of the defendant-appellant village “in not properly maintaining Big Tree Street in a reasonably safe condition and in permitting the utility pole to be placed and maintained too close to the paved portion of” the street. The allegations of negligence asserted against the defendants-respondents utility companies are in placing and maintaining the pole “ at a point so close to the edge of the traveled portion of Big Tree Street as to constitute a danger to the vehicular users of said street.” The cross complaint of the village asserts that the cause of the accident was the negligence of the utility eomnanies in the placing and maintaining of the pole and that if plaintiffs were to recover for this reason, and without any negligence on the part of village, it should have judgment over against the utility companies. An examination of the main complaints, as well as the cross complaint, indicates that the negligence of the village may be purely passive in “permitting” the pole to remain where installed by the utility companies. Both complaints, and particularly the third-party complaint, should be liberally construed at the pleading stage. Under these circumstances the fate of the cross complaint should await the determination of the factual issues upon the trial (Jackson v. Associated Dry Goods Corp., 13 N Y 2d 112, 117; Sigismondi v. Lewis, 18 A D 2d 762; Brady v. Weiss & Sons, 6 A D 2d 241, 244; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204, 206). (Appeal by defendant, Village of Livonia, from judgments and order of Monroe Special Term dismissing the cross claims of defendant against defendants, Rochester Telephone Corporation and Niagara Mohawk Power Corporation.) Present — Bastow, J. P., Goldman, Henry, Noonan and Del Vecchio, JJ.