Bernstein v. Albany Garage, Inc.

Michael V. Tepedino, J. This action, commenced on October 22,1959 by Benjamin Bernstein, as guardian ad litem of Stephen Bernstein, an infant and Benjamin Bernstein, individually, alleges that on July 18, 1959, while on premises of defendant Albany Garage, Inc., infant plaintiff was bitten by a dog, which was owned by Charles Averill. On or about the 5th day of January, 1960, defendant Albany Garage Inc. served a third-party summons, returnable January 14, 1960, on Charles Averill, the latter therein named third-party defendant. The matter was adjourned until January 20, when a third-party verified complaint was served. At that time, third-party defendant, appearing specially, moved to dismiss the third-party action on the ground that a summons and copy of a verified complaint was not served by third-party plaintiff, in accordance with section 193 of the Civil Practice Act. Prior to the enactment of chapter 251 of the Laws of 1951, amending section 193-a of the Civil Practice Act, section 193 was not applicable to the City Court of Albany. (Hirsch v. Albany Sav. Bank, 192 Misc. 505, affd. 276 App. Div. 792.) “ Third Party Practice. In accordance with chapter 251 of the Laws of 1951, amending Sec. 193-A of the C. P. A. by adding an additional section thereto, making such section and any related rule of Civil Practice applicable to all courts of record, the following procedure is promulgated: * * * [576] “ b. An action by a third-party plaintiff, pursuant to Sec. 193-A of the C. P. A., shall be commenced by serving upon the third-party defendant a summons and copy of a verified complaint, together with copies of all pleadings in the action. A copy of the third-party summons and complaint shall be served upon the plaintiff or his attorney.” (Albany City Court Rules, rule IX.) This court is of the opinion that the law, applicable to third-party practice, should be liberally construed. However, the manner of interpleading a third party is clearly expressed in rule IX, supra. Motion to dismiss the third-party action is hereby granted, without costs and without prejudice.