Klinger v. Dudley — 49 A.D.2d 693

Majority

p. 693

Lora H. Klinger, Individually and as Administratrix of the Estate of Richard B. Klinger, Deceased, Appellant-Respondent, v Jerry Dudley et al., Defendants and Third-Party Defendants-Appellants. Wayne Cookson et al., Respondents; Frank Leone, Defendant-Appellant and Third-Party Plaintiff-Appellant. Steven F. Smith et al., Third-Party Defendants-Appellants; Donald Hammond et al., Third-Party Defendants-Respondents. (Appeal No. 1.)

Judgment unanimously modified, on the law, in accordance with memorandum and as modified affirmed, without costs. Memorandum: The evidence in this negligence action presented questions of fact as to liability and damages and we find no grounds for reversal as to either. The judgment of May 9, 1974 must be modified in the second and third ordering paragraphs to provide that payment of the judgments against the third-party defendants is conditioned upon defendant Leone paying the full amount of the judgment rendered against him (McCabe v Queensboro Farm Prods., 22 NY2d 204 ; Adams v Lindsay, 77 Misc 2d 824 ; McLaughlin, New York Trial Practice 171 N.Y.L.J., June 14, 1974, p 4; David E. Siegel, Practice Commentary, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR 3019, pp 278-279). We find no merit to the other points raised. (Appeals from judgment of Chautauqua Trial Term in wrongful death action.) Present—Marsh, P. J., Moule, Simons, Mahoney and Del Vecchio, JJ.

Cases cited

McCabe v. Queensboro Farm Products, Inc. 22 NY2d 204 N.Y. 1968-05-29 p. 693
Adams v. Lindsay 77 Misc 2d 824 N.Y. Sup. Ct. 1974-03-28 p. 693