Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied.
The third-party complaint is legally sufficient. Only a trial of the issues can determine whether plaintiff is relying upon defendant's actual or constructive notice that the equipment was in defective condition. In a proper case a jury may find that an act of omission was passive negligence entitling a third-party plaintiff to recover over against the defendant whose...
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