Lawless v. Board of Education

Gibson, J. (concurring).

The complaint specifically charges affirmative acts of negligence on the part of defendant and third-party plaintiff Van Etten, whereby a dangerous and defective condition was created. The additional allegations are of his negligent failure to properly repair and maintain, and of his negligent failure to warn ‘‘ of such defect and such improper repairs ”, These averments must, in context, b,e deemed to charge active negligence, since the. defective condition was. of defendant’s own making. (Central Hudson Gas & Elec. Corp. v. V. J. Costanzi, Inc., 281 App. Div. 905,…