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DONNELLY v. ROCHESTER GAS & ELEC. CORP.

21 A.D.2d 740 (1964)

Howard Donnelly, Plaintiff, v. Rochester Gas and Electric Corporation et al., Defendants Rochester Gas and Electric Corporation, Third-Party Plaintiff-Appellant, v. Richard J. Tanner et al., Doing Business as R. E. Tanner Line Construction Co., Third-Party Defendants-Respondents Philip R. Kennard, Plaintiff, v. Rochester Gas and Electric Corporation et al., Defendants Rochester Gas and Electric Corporation, Third-Party Plaintiff-Appellant, v. Richard J. Tanner et al., Doing Business as R. E. Tanner Line Construction Co., Third-Party Defendants-Respondents

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

May 21, 1964

Order unanimously reversed, without costs, and motion denied, without costs.

Memorandum:

It is not clear that the plaintiff cannot recover from the defendant Rochester Gas and Electric Corporation on the basis of passive negligence. That being so, the second cause of action in the third-party complaint was improperly dismissed as insufficient in law. This is particularly so when the cause of action which was dismissed...

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