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.