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HENRY N. SCHELLHORN, Plaintiff, v. NEW YORK STATE ELECTRIC AND GAS CORP., Defendant and Third-Party Plaintiff-Respondent. JUDGE NEON SIGN CO., INC., Third-Party Defendant-Appellant.

The main complaint may be construed as charging the third-party plaintiff, an electric power company, with passive as well as active negligence resulting in plaintiff's injury. In a situation in which the main complaint may be construed as charging the third-party plaintiff with passive negligence, even though it also charges him with active negligence, it has been the policy of this court not to dismiss such a complaint, but to leave the question of liability over until the examination of facts afforded at the trial. ( Robinson v. Binghamton Constr. Co., 277 App. Div. 468; Johnson v. Endicott Johnson Corp., 278 App. Div. 626. ) Order unanimously affirmed, with $10 costs and disbursements.

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SCHELLHORN v. NEW YORK STATE ELECTRIC GAS CORP
(Jan 27, 1954)