Brown v. George A. Fuller Co. , 3 A.D.2d 830 ( 1957 )

The first cause of action in the third-party complaint is sufficient. The original complaint charges defendant Getomer with acts of negligence, some of which, depending upon the proof at the trial, may establish secondary liability as compared with possible primary liability of the third-party defendant Draohman Demolition Co., Inc. However, the second cause of action in the third-party complaint which seeks recovery based upon contractual indemnity is not sufficient. It is not necessary that the contract be annexed to the complaint, but the allegations must set forth the legal effect of such agreement and, to be sufficient, such allegations must establish that the third-party defendant undertook to indemnify the third-party plaintiff for the wrongful acts of the third-party plaintiff. Order unanimously modified so as to dismiss the second cause of action contained in the third-party complaint, but with leave to the third-party plaintiff to serve an amended complaint within 10 days after service of a copy of the order herein, with notice of entry thereof, and without costs to either party. Concur — Peck, P. J., Breitel, Botein, Rabin and Bergan, JJ.