The third-party plaintiff-appellant appeals from an order which dismissed its complaint on the merits for failing to state a cause of action. The defendant was engaged in digging a trench. The decedent, an employee of the third-party defendant-respondent, entered the trench, which had not been shored up, and was killed by a cave-in. A comprehensive statement of the facts is set forth in the decision of Special Term (45 Misc.2d 592). The only...
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