280 A.D. 960 | N.Y. App. Div. | 1952
Order reversed on the law and facts, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: While the third-party complaints sufficiently state a cause of action for indemnity against the third-party defendant, the trial of issues relating to the liability of the third-party defendant under its contract of insurance, with the issues in the tort actions, would undoubtedly be prejudicial to the third-party defendant. (Caserta v. Beaver Constr. Corp., 197 Mise. 410; Remch v. Grabow, 193 Mise. 731.) Impleader under the circumstances here presented was improper and the motion by the third-party defendant to dismiss the third-party complaints should be granted without prejudice to the third-party plaintiff herein to bring a separate action against its insurer. (See Civ. Prae. Act, § 193-a, subd. 4; Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 201, n. 37.) All concur. (Appeal from an order denying a motion by the third-party defendant for dismissal of the complaint of defendant Stevens in each of the actions against said third-party defendant.) Present — Taylor, P. J., McCurn, Kimball, Piper and Wheeler, JJ.