(dissenting). Appellant city seeks a reversal upon two grounds — first, that the third-party complaint is insufficient because it omits to allege that the third-party plaintiff’s claim was presented to it and, second, that said third-party complaint fails, in any event, to state a cause of action against it.
Since the majority has found it unnecessary — in the view it has taken — to consider the first ground, we deem it sufficient simply to note our opinion that the provision of the Administrative Code, requiring presentation of “ claims ” against the City of New York to its comptroller “ for adjustment ” “ at least thirty days ” prior to commencement of suit (Administrative Code of City of New York, § 394a-1.0, subd. a), is not, and cannot, in the very nature of things, be applicable to a third-party action, where the liability of the city, brought in as the *426third-party defendant, is necessarily contingent and dependent Upon the outcome of the primary action against the third-party plaintiff.
The court has discussed the city’s second contention, and to that we turn. While it may he true, as the opinion of the majority declares, that a landlord is not liable to a tenant for damages caused by a failure to repair, absent his control of the premises, that cannot help appellant, for the third-party complaint here charges in so many words such control by the landlord. It is expressly alleged that appellant city u owned, controlled and maintained premises known as 522 East 119th Street * * # and all the sewer gutters, sewer mains and sewer pipes of said premises. ” It is also alleged that under the provisions of its lease with the tenant the city covenanted to maintain and keep in good condition and repair such gutters, sewers and pipes, that it failed to do so and that its failure caused the damage to the original plaintiff’s premises.
A third-party suit, the applicable statute provides, ‘ ‘ must be related to the main action by a question of law or fact common to both controversies ” (Civ. Prac. Act, § 193-a, subd. 1), and, accordingly, we examine the pleadings to determine whether they disclose that “ common ” question. The allegation that the city “ controlled ” the premises and the sewer mains and sewer pipes is certainly more than enough to create an issue of fact as to its liability for failure to repair: the question of such liability is ‘ ‘ common to both controversies ’ ’. And, in view of the complaint’s explicit recital of control in the landlord, it is of no consequence that there is no allegation that the landlord, in connection with its covenant to repair, “ had retained the right to re-enter the premises ” in order to make repairs, for such a right is but one of the indicia of control.
Nor does the fact that the original complaint recites that the defendant, the third-party plaintiff, “ operated and was in possession of ’ ’ the premises in question warrant the conclusion, at this pleading stage, that the third party had such possession or control of the sewer mains and sewer pipes as to render it jointly liable with the city and thereby prevent a recovery over. Since, then, the third-party plaintiff may be able to prove that the city alone caused the damage, it was privileged to bring in *427the city as“a person not a party to the [original] action, who is or may be liable to * * * [it] for all or part of the plaintiff’s claim against ” it (Civ. Prac, Act, § 193-a, subd. 1).
We would affirm the order of the Appellate Division.
Conway, Froessel and Van Voorhis, JJ., concur with Dye, J.; Fuld, J., dissents in an opinion in which Lewis, Ch. J., and Desmond, J., concur.
Orders reversed, etc.