Opinion
October 28, 1959
Appeal from the Erie Trial Term.
Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.
Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court erred in dismissing the third-party complaint of appellant. The basic cause of action against the city was submitted to the jury upon two theories. The first was that the city was guilty of negligence in that it had created the hazard by the work done in 1947 upon the water box by its employees. The second theory was that the city might be found negligent for permitting the condition to exist in the sidewalk from 1947 to the date of the accident in 1956. Thus, the city could have been found liable for either active or passive negligence. It follows that if the verdict had been based upon a finding of only passive negligence the city was entitled to have the jury pass upon its third-party complaint against respondent. There is no clear evidence in the record that the water box was raised above the sidewalk level in 1947 by the city. The scant evidence is to the contrary. All of this should be passed upon by a jury. The third-party complaint should not have been dismissed on the ground that the title to the property was in respondent and his wife and the latter was not a third-party defendant. If it had been decided that the wife was an indispensable party the court should have ordered her brought in as a third-party defendant. (Civ. Prac. Act, § 193, subd. 2.) The action should not have been defeated upon a finding of nonjoinder (Civ. Prac. Act, § 192). All concur.