12 Misc. 2d 119 | N.Y. Sup. Ct. | 1957
This motion is made by the third-party defendant, Western Foundation Corporation, to dismiss the third-party complaint served upon it by the defendant, Edgarton and Edgarton. The motion is made under rule 106 of the Rules of Civil Practice upon the sole ground that the third-party complaint on its face fails to state facts sufficient to constitute a cause of action. Upon such a motion, all of the allegations of the third-party complaint must be assumed to be true for the purposes of the motion. Of course, allegations which are immaterial or irrelevant, for the purpose of proving the cause of action and all allegations which are conclusions of law or of fact can be disregarded.
The third-party defendant, Western Foundation Corporation, in its brief has elected to rely upon the assumption that the third-party plaintiff is attempting to set up a cause of action based upon negligent misrepresentation and has exhaustively briefed the law on this subject urging that the third-party complaint should be dismissed because it does not set forth a proper cause
An examination of the third-party complaint will, I believe, reveal that the third-party plaintiff has attempted to set up in one cause of action, allegations which might well be intended to support several causes of action. A great many of the allegations are eonclusory in nature and would appear to be completely immaterial and irrelevant if addressed to one or more of the theories which are attempted to be asserted. No facts are alleged from which the nature of the cause of action relied upon can be ascertained or from which the court could determine the theory upon which the third-party plaintiff is actually proceeding.
By reference to the contract and other exhibits, which are annexed to the complaint in the action, all of which are made a part of the third-party complaint by reference, and by an examination of the statements in the brief of the third-party plaintiff as to the relationship of the parties, it is possible to reconstruct the part each played in the complete transaction covered by the two causes of action set out in the third-party complaint.
In order to determine the motion it is first necessary to understand this relationship. The plaintiff, Ammann and Whitney, is a firm of consulting engineers of New York City. They were engaged by the defendant, Edgarton and Edgarton, a firm of architects and engineers, who were engaged as general architects, in preparing the plans and specifications for the construction of the Syracuse War Memorial Building in the city of Syracuse, New York. The plaintiff, as consulting engineers, was engaged by the defendant under written contract to design and supervise the structural items of the building. The written contract provided for payment of compensation including compensation for extra work which might be necessary. The plaintiff’s complaint sets forth four causes of action; the first to recover a balance of $7,075.99 due for work on the original plans; the second to recover the sum of $10,900 due for extra work alleged to have been done in revising the plans in 1949; the third to recover the sum of $3,592.96 for extra work in revising the plans in 1950; and the fourth to recover for all of such services on a quantum meruit basis. The owner of the Syracuse War Memorial Building, by which the defendant was employed, was the County of Onondaga. The original complaint and the contract between the plaintiff and defendant are made a part of the third-party complaint by paragraph <£ 7 ” thereof and the
It is next necessary to consider the effect of the allegations of the third-party plaintiff in the first cause of action set forth in the third-party complaint. As pointed out, there is but one cause of action asserted against the Western Foundation Corporation. Included therein are allegations of warranties and guarantees, of false and untrue statements, of negligent claims and imprudent acts, all of which are asserted to have been done for the purpose of inducing the defendant, third-party plaintiff, to change the plans and specifications for the War Memorial Building. In the first place, in the absence of any allegation of any contractual or other legal relationship between the third-party plaintiff and defendant, these allegations would appear to me to be completely immaterial and irrelevant. . The allegations
There are, I believe, several other circumstances raised by the service of the third-party complaint, which should be commented upon. In addition to the first cause of action set out against the Western Foundation Corporation, there is also set out a second cause of action against the County of Onondaga. It would appear from the statements and briefs of counsel that any contractual relationship of the defendant, Edgarton and Edgarton, in reference to the construction of the War Memorial Building was with the County of Onondaga. The general contractor is employed by and received his compensation from the owner. The court will take judicial notice that the architect’s compensation would be covered by his contract with the owner and under the circumstances presented in the briefs of the parties as to any added compensation due the architect defendant as a result of any changes in the plans and specifications, that compensation would be due from the owner, County of Onondaga. The architect defendant would seem to rely upon this theory by reason of asserting the second cause of action in his third-party complaint against the County of Onondaga. The right of the third-party plaintiff to recover under the first and second causes of action are completely inconsistent and would continue to be inconsistent were the third-party plaintiff to allege a cause of action based upon negligent misrepresentation.
Finally, the pleading under consideration is a third-party pleading. It is provided for under section 193-a of the Civil Practice Act. The purpose of section 193-a has been clearly stated to be to eliminate multiplicity of suits and to permit the disposition of all claims arising between all persons emanating from one transaction, which are related one to the other, but only upon the condition that justice and convenience shall not be sacrificed by doing so. To justify the use of the third-party practice, the relationship to the controversy must be direct and involve questions common to both controversies so that there will be a clarification and avoidance of multiple actions and not confusion and complication. (Franklin E. Tyrell, Inc. v. Vahlsing, 193 Misc. 454, 459; Napack v. Grubman, 190 Misc. 718; Chapin Owen Co. v. Newman, 201 Misc. 1072.)
Under subdivision 4 of section 193-a the court is given substantial discretion in connection with third-party complaints to order a separate trial of the third-party claim or of any separate issue thereof or to make such other orders concerning the
The first cause of action of the third-party complaint is dismissed, with $10 costs, without prejudice to the right of the defendant, third-party plaintiff, to serve an amended third-party complaint setting forth facts establishing such cause of action as it may have against the third-party defendant, Western Foundation Corporation, within 10 days from the date of the service upon it of a copy of the order granting this motion.