
    Sam Rubenstein et al., Doing Business under the Name of Imperial Crayon Co., Plaintiffs, v. 641 Lexington Avenue Corporation, Defendant, and Third-Party Plaintiff-Respondent. Kingsway Store Fixture Co., Inc., Third-Party Defendant-Appellant.
    Supreme Court, Appellate Term, Second Department,
    December 20, 1961.
    
      
      Sidney Grossman for appellant. August Zolotorofe for respondent.
   Per Curiam.

The original complaint served by the plaintiffs tenants on defendant landlord charges defendant with improper maintenance of the sprinkler system in violation of its contractual and common-law duty, in that it failed to furnish heat in the premises during freezing weather. It is alleged that as a result there was a freezing and bursting of the sprinkler system with resultant damage to plaintiff’s property. The defendant owner, as third-party plaintiff, charges that the damages occurred solely by reason of the fact that the third-party defendant, another tenant in the building, permitted a window to remain open during freezing weather. These allegations if established may constitute a defense to the action but do not support any theory for liability over. Even if the alleged misconduct of the third-party defendant were proven to be a concurring cause of the accident, it would not entitle the third-party plaintiff to indemnification. (Balch v. Richby Realty Corp., 4 A D 2d 864, affd. 4 N Y 2d 1006; Kile v. Riefler Bros. Contrs., 282 App. Div 1000.)

The order should be unanimously reversed upon the law, with $10 costs, and taxable disbursements to the third-party defendant-appellant, and the motion granted, and judgment is directed to be entered in favor of the third-party defendant-appellant against the third-party plaintiff-respondent dismissing the third-party complaint, with costs.

Concur — Hart, Di Giovanna and Benjamin, JJ.

Order reversed, etc.  