11 Misc. 2d 273 | N.Y. Sup. Ct. | 1958
The third-party defendant moves for summary judgment pursuant to rule 113 of the Buies of Civil Practice and for the dismissal of the complaint of the third-party plaintiff. The original action sought to establish a prescriptive right of way in favor of the plaintiffs in a portion of the defendants and third-party plaintiffs’ adjoining lands and for injunctive and divestitive relief. Alleging a covenant against incumbrance the third-party plaintiffs have brought in their grantor, the third-party defendant herein. (Civ. Prac. Act, § 193-a.) While the cause awaited trial, the plaintiffs and defendants effected a compromise of their action and stipulated its discontinuance by order. Concededly, the only question which the motion poses is whether- the third-party action survives the settlement and discontinuance of the main action. A compromise of the action in itself, like a mere confession of judgment, could not thereby create a proper basis for judgment
Submit order.