195 Misc. 1005 | N.Y. Sup. Ct. | 1949
To the extent that this motion seeks to dismiss the third-party complaint for alleged insufficiency, it is denied. It is possible that the plaintiffs may recover against the third-party plaintiff on the basis of the allegations of the complaint that the third-party plaintiff warranted that the warehouse was fireproof, but failed to maintain a fireproof warehouse as warranted (paragraphs Third and Sixth of complaint). Under section 193-a of the Civil Practice Act the claim of the third-party plaintiff against the third-party defendant “ need not rest upon the same cause of action or the same ground as the claim asserted against the third-party plaintiff,” This provision renders obsolete the case of Nichols v. Clark, MacMullen & Riley, Inc. (261 N. Y. 118) decided prior to the enactment of section 193-a (L. 1946, ch, 971).
To the extent that the present motion seeks to dismiss the third-party complaint in the exercise of the court’s discretion, the motion is likewise denied. It appears that plaintiffs themselves have brought in the third-party defendant as a defendant to the action instituted by them. Since the third-party defendant is now a defendant to the plaintiffs’ action, the third-party plaintiff is entitled as a matter of right under section 264 of the Civil Practice Act to assert a cross claim against the third-party defendant. Put somewhat differently, the third-party defendant is no longer such. It is now merely a defendant to the original action. In the circumstances, no useful purpose can be served by dismissing the third-party complaint, for the third party plaintiff can immediately thereafter assert the same cause of action as a cross claim instead of as a third-party complaint.
The motion is denied in all respects, with leave to answer within ten days from the service of a copy of this order with notice of entry.