Portnoy v. United Engineers & Constructors, Inc. , 274 A.D. 891 ( 1948 )

In an action to recover damages for personal injuries, respondent, who was brought into the action as a third party defendant, pursuant to the provisions of section 193-a of the Civil Practice Act, by Christie & Leiser, Inc., a defendant named in the main action, set up in his amended answer to the third party complaint a cross claim for indemnity against appellant, also a defendant named in the main action. Appellant had asserted no claim against respondent, and moved to dismiss respondent’s cross complaint, asserting that such cross complaint could not properly be interposed pursuant to any provision of section 193-a of the Civil Practice Act, since appellant was not a party to the “ third-party action ” commenced by defendant Christie & Leiser, Inc., against respondent. Order denying motion to dismiss respondent’s cross complaint affirmed, with $10 costs and disbursements. In our opinion, after the service on respondent of the complaint of defendant Christie & Leiser, Inc., respondent became a party to the action commenced by the plaintiff against appellant and other defendants, and appellant and respondent were parties to the action and “parties on the same side” within the meaning of section 264 of the Civil Practice Act. Appellant’s claim that appellant and respondent are, at most, joint tort-feasors may not be determined on the present record. Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.