[143 N.Y.S.2d 77] Theodore H. Cohn, Binghamton, for plaintiffs.
Kramer, Night & Wales, Binghamton, for third-party defendants-appellants Vincent Tanzini, Chester Tanzini and Stanislaus Tanzini (Donald W. Kramer, Binghamton, of counsel).
[143 N.Y.S.2d 78] Hinman, Howard & Kattel, Binghamton, for respondent third-party defendants and third-party plaintiffs Paul Rizzuto and S. B. Lindau (David Brown, III, Binghamton, of counsel).
Charles P. O'Brien, Binghamton, for defendant and third-party plaintiff, County of Broome.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and ZELLER, JJ.
Within the frame of this single case is an illustration of a liability over in tort well pleaded and of another situation in which it is not well pleaded. The record illustrates in relief 'active' and 'passive' negligence.
While riding on the back of a truck owned by Tanzini Brothers, infant plaintiff Fletcher was injured when he was thrown from the truck on Watson Boulevard, Broome County. The complaint against the County of Broome in his action alleges the accident was due to the existence of a 'large depression' on a highway for which the County was responsible to the public and that the County's negligence was in failing to notice and repair the depression.
The County brought in as third-party defendants the partners constituting Parlor City Construction Company. The County's pleading alleged that Parlor City had been engaged in construction work for a sewer district and had obtained permission from the County to excavate under Watson Boulevard, a county highway; and that if there was negligence by which Fletcher was hurt it was the negligence of Parlor City in which the County took no part.
The County pleaded additionally that in accepting official permission to excavate the county highway Parlor City expressly agreed in writing to indemnify the County against all damages that might arise from the performance of the work in the highway.
Upon coming into the action as a third-party defendant, Parlor City brought in as new third-party defendants the partners constituting Tanzini Brothers, who owned the truck which ran into the depression and in which plaintiff Fletcher was riding.
This new third-party complaint alleged that the truck was being driven negligently and that if a recovery be had against Parlor City it 'can be based only upon passive acts of negligence' and not upon any 'active or affirmative acts of negligence'; and that the injury was caused by 'the active and affirmative' act of negligence of Tanzini Brothers.
The situation which the County presents in its third-party complaint is a good example of the 'passive' side of the active-passive negligence theory; but the pleadings do not show ...