64 Misc. 2d 454 | N.Y. Sup. Ct. | 1968
Defendants Borg-Warner Corp. and Norge Sales Corp. have served a third-party summons and complaint on the third-party defendants Rheem Manufacturing Co. and Robertshaw-Fulton Controls Co., alleging a right of recovery on the theory of common-law indemnity from the third-party defendants in the event plaintiffs recover in the main action from the defendants-third-party plaintiffs. Although the third-party defendants are named in the title of the main action they have never been served. An earlier third-party action between the same parties was commenced in October of 1965 after the defendants-third-party plaintiffs had been served in the main action. The third-party summons and complaint were identical with the third-party summons and complaint served in the pending third-party action save for the dates each was issued. The first third-party action was dismissed by order entered July 18, 1967 by reason of the dismissal of the main action as to the third-party defendants. Both third-party defendants had 'moved for dismissal of the main action as to them on the ground of plaintiffs’ unreasonable neglect to prosecute. The court granted their motions — even though they had not been served in the main action — because the third-party defendant had the right to assert any defense or make any motion against the main action that the defendants-third-party plaintiffs could assert even though the defendants-third-party plaintiffs failed to seek such relief on their own behalf. (See CPLR 1008; Marrone v. Johnson & Sons, 283 App. Div. 1114; 2 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 1008.03, p. 10-131.). Thus, the plaintiffs ’ complaint was dismissed as to the third-party defendants even though the defendants-third-party plaintiffs had not been accorded similar relief. The practical effect of dismissal was to bar a recovery in the main action against the defendants-