Goldner v. Wiener , 36 Misc. 2d 741 ( 1956 )

Isadore Bookstein, J.

The motion to dismiss is based solely on the ground of failure to institute the action within due time as required by law. In its brief, the third-party defendant urges also the insufficiency of the third-party complaint. On this motion that matter is not before me for determination.

A third-party action, by way of indemnity, does not accrue until actual payment of the judgment rendered against the defendant and third-party plaintiff by the original plaintiff. (Satta v. City of New York, 272 App. Div. 782; cf. Clements v. Rockefeller, 189 Misc. 889; Prost v. City of New York, 190 Misc. 197; Crapo v. City of Syracuse, 183 N. Y. 395, and dissenting opinion in Dick v. Sunbrigkt Steam Laundry Corp., 307 N. Y. 422, 425).

Motion to dismiss third-party complaint denied, without prejudice to a motion to dismiss the same for insufficiency..