Vander Veer v. Tyrrell
| Decision Date | 12 April 1967 |
| Citation | 27 A.D.2d 958,278 N.Y.S.2d 916 |
| Parties | Albert VANDER VEER, 2nd, Respondent, v. Thomas I. TYRRELL, Appellant, and Willing & Brown, Inc. et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for appellant Thomas I. Tyrrell.
Cooper, Erving & Savage, Albany (James E. McHenry, Albany, of counsel), for plaintiff-respondent, Albert Vander Veer, 2nd.
Ainsworth, Sullivan, Tracy & Knauf, Albany, for respondents Willig & Brown, Inc. and Robert K. Mix:
Carter & Conboy, Albany, for respondent Albany Country Club.
Hesson, Forg & Grogan, Albany (Neil Hesson, Jr., Albany, of counsel), for respondent, Victor Comptometer Corp.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, STALEY and GABRIELLI, JJ.
Appeal from an order of Special Term dismissing cross claim of defendant-appellant, Thomas I. Tyrrell.
In this negligence action, plaintiff alleges he sustained certain injuries when he was struck on the premises of defendant Albany Country Club by a golf cart operated by defendant Tyrrell.
The cart had been manufactured by defendant Victor Comptometer Corp. and in turn sold to defendant Willing & Brown, Inc. who leased the cart to defendant Albany Country Club and the cart, in turn, was entrusted to defendant Mix, the golf professional who rented it to the defendant-operator Tyrrell.
The complaint against the defendant Country Club charges negligent construction of the pathways upon which the cart was operated and of failure to warn users of the course to be used by cart traffic. Defendant Mix and the Club are charged with joint negligence in failing to keep the cart in proper repair and to warn users thereof of inherent dangers. The manufacturer is charged with negligent construction and failure to inspect. Defendant Willing & Brown, Inc. is charged with failing to keep the cart in a proper state of repair and to warn of the dangerous condition thereof while the operator Tyrrell is charged with operating the cart in a negligent manner, failure to inspect the cart and to warn the plaintiff of the danger.
Defendant Tyrrell by two separate claims, has cross-claimed against his codefendants asserting that any alleged negligence against him is passive in nature and that if recovery is had, it can result only from the active negligence of his codefendants. His second claim-over is based upon the charge that the codefendants warranted the cart to be reasonably fit for its intended and known purpose.
Directing our attention to the first cross claim, if liability is imposed upon the defendant-operator, it can...
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