
    (January 24, 1956)
    George Solomon, Plaintiff, v. Marseilles Hotel Corp., Defendant and Third-Party Plaintiff-Appellant. State Elevator Co. Inc., Third-Party Defendant-Respondent.
   Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The third-party complaint is legally sufficient. Only a trial of the issues can determine whether plaintiff is relying upon defendant’s actual or constructive notice that the equipment was in defective condition. In a proper case a jury may find that an act of omission was passive negligence entitling a third-party plaintiff to recover over against the defendant whose conduct caused the dangerous condition (McFall v. Compagnie Maritime Belge, 304 N. Y. 314). Concur — Peck, P. J., Breitel, Bastow and Cox, JJ.  