This motion by a defendant to compel his codefendant to accept service of his answer containing a cross complaint against the latter is granted.
Under the Civil Practice Act such service could be made at any time up to 20 days before the trial and no pleading responsive thereto was required. CPLR has changed the procedure with respect to cross claims. An answer to a cross claim is now required by CPLR 3011. But there is no special provision as
Service of an answer containing a cross complaint upon a codefendant who is not served by plaintiff is of no effect and in practice defendants do not serve codefendants until they learn of their appearance in the action and then they serve as permitted their attorneys. Unless the delay is shown to be prejudicial in some respect, the courts will not penalize late service upon codefendants in view of the unclear service of pleading provisions when applied to'cross claims and the practical problem involved. Defendants asserting cross claims should avail themselves of CPLB 2103 (subd. [e]) and demand of plaintiffs a list of those parties who have appeared.
No prejudice is here shown. Nor can the sufficiency of the cross complaint be questioned on this motion. That may be tested only on a motion to dismiss. The answer shall be served on the codefendant within 10 days after publication of this determination.