Torts · MBE-tested
Matthew Vaughan, Plaintiff, v. Globe Neon Sign Co. et al., Defendants; Service Sign Erectors Co., Inc., Third-Party Plaintiff-Respondent, v. Seniors Restaurant, Inc., Third-Party Defendant-Appellant
10 A.D.2d 568·New York Supreme Court, Appellate Division·1960·NY
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Opinion
Matthew Vaughan, Plaintiff, v. Globe Neon Sign Co. et al., Defendants. Service Sign Erectors Co., Inc., Third-Party Plaintiff-Respondent, v. Seniors Restaurant, Inc., Third-Party Defendant-Appellant.
[MAJORITY]
Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to dismiss the third-party complaint on the ground of insufficiency is granted, with $10 costs. A reading of the complaint, as well as the third-party pleading, requires the conclusion that the third-party plaintiff, if liable at all, can only be held responsible as an active or primary tort-feasor. Under the circumstances a judgment over could not be sustained. (See Putvin v. Buffalo Elec. Co., 5 N Y 2d 447, 456-457.) Concur —Rabin, J. P., M. M. Frank, Valente, McNally and Stevens, JJ.