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  5. 31 N.Y.2d 25 (1972)
 

KELLY v. LONG IS. LIGHT. CO.

31 N.Y.2d 25 (1972)

Willis Kelly et al., Plaintiffs, v. Long Island Lighting Co., Respondent; Herrick Manor, Inc., Appellant, et al., Defendants.

Court of Appeals of the State of New York.

Decided June 8, 1972.

Attorney(s) appearing for the Case

Arthur N. Seiff for appellant.

Joseph D. Ahearn and David E. Kadane for respondent.

Chief Judge FULD and Judges BERGAN, BREITEL and GIBSON concur with Judge JASEN; Judges BURKE and SCILEPPI dissent and vote to reverse and dismiss the complaint as against defendant Herrick Manor, Inc., upon the ground that no negligence was established as to said defendant.

JASEN, J.

Defendant, Herrick Manor, Inc. (Herrick) appeals from an order dismissing its cross claim against defendant Long Island Lighting Co. (LILCO) on the ground that Herrick was guilty of "active" negligence, and, therefore, not entitled to a recovery over from co-tort-feasor, LILCO.

The controversy between the parties arises out of an accident which occurred during the construction of an apartment...

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