
    George Spalt, Plaintiff, v. Niagara Mohawk Power Corporation, Respondent, and F. Harris Patterson, Inc., Appellant.
   Herlihy, J.

Appeal by the defendant F. Harris Patterson, Inc. (hereinafter referred to as Patterson) from an order allowing the defendant-respondent Niagara Mohawk Power Corporation (hereinafter referred to as power corporation) to serve an amended answer containing a cross complaint against the said Patterson. The complaint alleges that the plaintiff, the owner of certain property, contracted with Patterson to dig an eight-foot deep trench for a sewer line; that in the performance of said agreement a backhoe owned by Patterson was used by its agents and servants and that the said trench was not shored up. It further alleges that on January 3, 1964 while an employee of Patterson was operating the backhoe it came in contact with a metal object, afterward identified as being property of the power corporation. The plaintiff entered into the trench for the purpose of inspecting the object and while there the walls collapsed causing the alleged injuries. The power corporation in its answer, in the event of judgment against it, seeks recovery over against Patterson. This is not an appeal from a motion for summary judgment to dismiss the complaint and from the present state of the pleadings, the nature of the responsibilities and the degree of wrongdoing cannot be determined on the pleadings alone. Under the circumstances, it is better to permit leave to serve the pleading and leave the resolution of the duties and responsibilities of the respective parties to the trial of the action. We do not, of course, reach the merits or any other issue except as related to the cross complaint. Order affirmed, with $10 costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Herlihy, J.  