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Seaman v. Colon

130 Misc. 568 Court Supreme Court, New York County, Decision date 1927-10-05 English

Delivered by *569 Feankenthaler, J.

Contents

Majority

p. 568
Henry B. Seaman, Plaintiff, v. George Colon and Others, Defendants.
Supreme Court, New York County,
October 5, 1927.

Headnote

Parties — additional party defendant — notice of motion under Civil Practice Act, § 192, need not be given to prospective defendant — sufficiency of complaint as to new defendant not question on motion to bring in.
A'party moving under section 192 of the Civil Practice Act to bring in an additional party defendant is not required to give notice of the application to a prospective party defendant.
On a motion to bring in an additional party defendant, the sufficiency of the complaint as to such new party is not properly before the court.
Motion by plaintiff under section 192 of the Civil Practice Act for an order bringing in an additional party defendant.
Wait, Wilson & Newton, for the plaintiff.
Miles H. Alben, for the defendants George Colon and Williám Egan.
Gettner, Simon & Asher, for the defendant George Colon Construction Company, Inc.

This is a motion by the plaintiff for an order bringing in Patrick McGovern, Inc., as an additional party defendant and permitting the issuance of a supplemental summons. The objection is made that notice of the application must be given to the proposed defendant. It is certain that notice to the original defendants must be given, and that is the meaning of the decision in Testing Laboratories of New York v. Krainin ( 124 Misc. 667 ). It cannot be construed to require that the proposed party must also be given notice. The case of Hennenlotter v. Norwich Union Fire Ins. Society ( 124 Misc. 626 ) would indicate that no such notice is necessary. It may be that notice is necessary under subdivision 2 of section 193 of the Civil Practice Act, but this motion is not made thereunder but rather pursuant to section 192. The question of the sufficiency of the cause of action against the new defendant is not properly before the court on this motion. Motion granted.

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