SCHELLHORN v. NEW YORK STATE ELECTRIC GAS CORP

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.