McCabe v. Queensboro Farm Products, Inc.

Christ, Acting P. J., Brennan, Rabin and Hopkins, JJ., concur: Nolan, j., dissents and votes to affirm the order, with the following memorandum: The third-party action against appellant was brought on the theory that it is or may be liable to respondent pursuant to a joint venture agreement which has otherwise been fully performed, for part of plaintiff’s complaint against respondent (former Civ. Prae. Act, § 193-a; CPLR 1007). Under the third-party practice formerly provided by the Civil Practice Act, and now by the Civil Practice Law and Rules, it is not necessary for the third-party plaintiff to establish a present and absolute liability over, when the third-party plaintiff’s right to reimbursement depends upon the discharge of a judgment against him (Rizzo v. Steiner, 36 Misc 2d 701, 703). In such a case, even if no payment has been made by the third-party plaintiff of .any sum in diminution of the judgment against him, a judgment may be entered against the third-partjr defendant conditional upon such payment by the third-party plaintiff (County of Oswego v. American Sur. Co., 63 N. Y. S. 2d 723, 725, affd. 272 App. Div. 862). The papers and proofs submitted are insufficient to warrant the court as a matter of law in directing judgment in favor of appellant.