Thompson v. Board of Education of Enlarged City School District 23 A.D.2d 520

Reynolds, J.

Appeal from an order of the Supreme Court, Otsego County, denying appellant’s motion to dismiss a third-party complaint. On September 13, 1962, the plaintiff, a high school student, allegedly was injured when struck by another student in an altercation which occurred aboard a school bus. In October, 1963 plaintiff brought suit against respondent Board of Education and respondent in turn brought a third-party action against appellant, the owner of the school bus, to whom by contract the board had delegated the duty of transportation. Plaintiff’s complaint may be construed as charging the third-party plaintiff, the Board of Education, with passive as well as active negligence in connection with the incident resulting in plaintiff’s injuries. Where the main complaint charges the third-party plaintiff with passive negligence despite the fact that it also may charge him with active negligence, it has been the policy of this court not to dismiss such a complaint, but to leave the question of liability over until the proof presented at the trial is evaluated and classified. While the third-party complaint could be more specific, viewing it liberally the court will infer that the board is asserting therein that it is only passively negligent and that the third-party defendant is actively negligent. Order affirmed, with $10 costs. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.