
    (October 30, 1959)
    Charles McCants, Plaintiff, v. Wilmorite, Inc., Defendant. Charles McCants, Plaintiff, v. Suburban Heights Development Corp., Defendant. Wilmorite, Inc., et al., Third-Party Plaintiffs-Appellants, v. Mafaldo Passero, Doing Business as State Construction Company, Third-Party Defendant-Respondent.
   Order reversed, with $10 costs and disbursements, and motion denied, without costs. Memorandum: Special Term dismissed the third-party complaint on the theory that plaintiff’s claim arose from a violation of section 241 of the Labor Law and, therefore, there could be no indemnity as a matter of law (Rufo v. Orlando, 309 N. Y. 345). The main complaint contains allegations of both passive and active negligence, although the distinction between the two is somewhat obscure. The claim of failure to provide a safe place to work and proper safety devices may be an allegation of passive negligence. From the pleadings before us it cannot be determined with any certainty that section 241 of the Labor Law applies. On the other hand, proof may be presented at trial which may make section 241 applicable. In the present posture of this action it cannot he determined until the facts are developed at trial whether there is a right of recovery over and, of necessity, the fate of the third-party complaint should be reserved for decision upon the trial. (See Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204, 206; Schellhorn v. New York State Elec. & Gas Corp., 283 App. Div. 678.) All concur. (Appeal from an order of Monroe Special Term dismissing the amended third-party complaint.) Present — McCurn, P. J., Williams, Bastow, Goldman and Halpem, JJ.  