Mandel v. Criares , 1 A.D.2d 830 ( 1956 )

In an action to recover damages for the wrongful death of plaintiff’s intestate, who is alleged to have been asphyxiated by poisonous gases escaping from a defective refrigerator in plaintiff’s apartment in a multiple dwelling, respondent, the owner of said dwelling, served a third-party complaint against the Brooklyn Union Gas Company alleging negligence on its part, in having made faulty, defective and negligent repairs to the refrigerator, and breach of warranty. The appeal is from an order denying the motion of the gas company to dismiss the third-party complaint. Order reversed, with $10 costs and disbursements, and motion granted, with leave to serve an amended third-party complaint within twenty days after the entry of the order hereon, if so advised. Respondent is an active tort-feasor pursuant to section 78 of the Multiple Dwelling Law and her third-party complaint alleges no facts to establish the primary liability of the gas company but only the conchisory statement that any recovery by the plaintiff must be based upon its negligence. As alleged in the third-party complaint, the gas company would be a tort-feasor in pari delicto. Similarly, the allegations in the third-party complaint, insofar as they purport to plead an agreement by the gas company to make repairs and the breach of such agreement, are purely eonelusory. In order to impose liability upon the gas company on any basis, whether in tort or contract, all the essential facts which give rise to such liability must be set forth. Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.