Karoline Eide, as Administratrix of the Estate of Ketil Eide, Deceased, Plaintiff, v. Board of Education of Union Free School District No. 24, Brookhaven, et al., Defendants; Board of Education of Union Free School District No. 24, Brookhaven, Third-Party Plaintiff-Appellant, v. Frederic P. Wiedersum, Third-Party Defendant-Respondent

Karoline Eide, as Administratrix of the Estate of Ketil Eide, Deceased, Plaintiff, v. Board of Education of Union Free School District No. 24, Brookhaven, et al., Defendants. Board of Education of Union Free School District No. 24, Brookhaven, Third-Party Plaintiff-Appellant, v. Frederic P. Wiedersum, Third-Party Defendant-Respondent. [MAJORITY] — In an action to recover damages for wrongful death and for conscious pain and suffering, arising out of the alleged negligence of defendants, the defendant and third-party plaintiff, the Board of Education, appeals from an order of the Supreme Court, Suffolk County, entered September 14, 1959, granting, with leave to plead over, the third-party defendant’s motion to dismiss the third-party complaint. Order reversed on the law, with $10 costs and disbursements, and motion denied. In our opinion, the allegations of the main complaint are sufficiently inclusive to permit a recovery by plaintiff against the said defendant and third-party plaintiff based upon its passive negligence and upon the primary active negligence of the third-party defendant, both of which are sufficiently pleaded, at least in the second cause of action contained in the third-party complaint. Under such circumstances, the third-party complaint should not have been dismissed (Weisman v. Hymns, 5 A D 2d 1000). Nolan, P. J., Beldoek, Christ and Brennan, JJ., concur.