125 Misc. 181 | N.Y. App. Term. | 1925
The application below was by the defendant Italia-America Shipping Corporation under section 193, subdivision 2, of the Civil Practice Act for leave to implead John J. Deery Co., Inc., as an additional party defendant. The plaintiff appeals from that part of the order burdening it with the service of the supplemental pleading upon the third party, and the defendant Deery Co. from the order bringing it in as such party.
It was manifestly improper to require the plaintiff to serve
On the other hand, the primary defendant claims that in contracting for the lighterage service from the plaintiff, it acted as the agent for the codefendant, who was bound to reimburse it for the liability thus assumed, the service being engaged by such defendant at the express direction of said Deery Company, and for the latter’s benefit. From these allegations it appears that it was within the proper discretion of the court below to order the Deery Company to be impleaded as a codefendant, but the original defendant should have been required to frame and serve the supplemental pleading. To a mandate in this form the plaintiff interposes no objection.
The order should, therefore, be modified by requiring that the defendant serve the supplemental summons upon John J. Deery Co., Inc., and an appropriate pleading upon said codefendant and the plaintiff and order, so modified, affirmed, with ten dollars costs.
All concur; present, Bijur, McGoldrick and Levy, JJ.