City and County Sav. Bank v. M. Kramer & Sons, Inc.
| Decision Date | 06 August 1964 |
| Citation | 252 N.Y.S.2d 224,43 Misc.2d 731 |
| Court | New York Supreme Court |
| Parties | CITY AND COUNTY SAVINGS BANK, Plaintiff, v. M. KRAMER & SONS, INC. and J. L. Ottenheimer & Associates, Defendants (two cases). M. KRAMER & SONS, INC., Defendant and Third-Party Plaintiff, v. McKENNA CONSTRUCTION CORPORATION, Third-Party Defendant. McKENNA CONSTRUCTION CORPORATION, Third-Party Defendant and Second Third-Party Plaintiff, v. ALBANY GRAVEL CO., Inc., Second Third-Party Defendant. M. KRAMER & SONS, INC., Defendant and Third-Party Plaintiff, v. STANTS COMBUSTION ASSOCIATES, INC., Third-Party Defendant. STANTS COMBUSTION ASSOCIATES, INC., Third-Party Defendant and Fourth-Party Plaintiff, v. William BRADLEY d/b/a Empire Welding & Boiler Repair Co., Fourth-Party Defendant. |
Sneeringer & Rowley, Albany, for Albany Gravel Co., Inc.; DeGraff, Foy, Conway & Holt-Harris, Albany, for McKenna Construction Corporation; Cerrito, Clayman & Mead, Schenectady, for stants Combustion Associates, Inc., for the motions.
Jack Goodman, Albany, for M. Kramer & Sons, Inc.; O'Connell & Aronowitz, Albany, for City and County Savings Bank, in opposition.
The third-party defendants, McKenna Construction Corporation (hereinafter called McKenna) and Albany Gravel Co., Inc. (hereinafter called Gravel Co.) move, under Rule 3211(a) 5, Civil Practice Law and Rules, to dismiss the third-party actions brought against them on the ground that the same are barred by the Statute of Limitations. In addition, Stants Combustion Associates, Inc., (hereinafter called Stants), a third-party defendant in a separate action, moves for leave to amend its answer to plead the Statute of Limitations, and upon such amendment also moves for dismissal of the third-party complaint against it. Stants in turn, has impleaded Empire Welding and Boiler Repair Co. as a third-party defendant, who has neither appeared nor moved.
These motions arise out of an action for breach of contract brought by the original plaintiff, City and County Savings Bank (hereinafter called Bank) against M. Kramer & Sons, Inc. (hereinafter called Kramer) and J. L. Ottenheimer & Associates, the original defendants. Under the terms of the contract, Kramer was, among other things, to furnish materials, fabricate and erect a fuel oil tank for the bank. The original complaint alleges that because of Kramer's failure to comply with the terms and specifications of the contract, the tank became corroded and unfit for use and that it became necessary to replace it. The Bank seeks to recover the cost of replacement from Kramer and the co-defendant. Thereupon Kramer impleaded McKenna as a third-party defendant, alleging that it had sub-contracted with McKenna for the erection and installation of the tank in accordance with the specifications in the original contract between the Bank and Kramer, and seeks to recover over against McKenna if Kramer is held responsible and has to answer in damages to the Bank. In its answer to Kramer's third-party complaint, McKenna pleads the Statute of Limitations as an affirmative defense, alleging that the action against it was not commenced within six years from the time the action accrued. McKenna, in turn, impleaded Gravel Co., alleging that Gravel Co. furnished the sand and gravel used for installation of the tank, and that if it, McKenna, should be held responsible and answerable in damages to Kramer, then Gravel Co. must indemnify McKenna because of a breach of an implied warranty of fitness of the sand and gravel furnished. Kramer also impleaded Stants, alleging that if it should be held responsible to the Bank, then it should recover over against Stants who sold the fuel oil tank to Kramer. Stants seeks to plead the Statute of Limitations in its answer, claiming that Kramer's action against it was not commenced within six years from the time it accrued.
In all of the third-party actions, recovery over against each of the thirdparty defendants is sought on the theory of an implied agreement to indemnify resulting from the breach of the contracts between the third-party plaintiffs and third-party defendants.
Kramer, in an affidavit in opposition to McKenna's motion to dismiss, states that a trial of all questions of fact is necessary to determine the date of final completion of its contract with the Bank and its sub-contract with McKenna and thus whether an action for breach of contract is barred by the Statute of Limitations. In the same affidavit, kramer states that this is an action over 'based upon an implied contract of indemnification', and, therefore, its action against McKenna need not have been brought until judgment had been obtained against it by the Bank and the judgment had been paid. In its memorandum of law Kramer specifically states that the question is not when the work was or was not performed under the contract but whether there was an implied agreement by McKenna to indemnify it against any recovery by the Bank. Thus, the issue to be determined here is whether there was an implied agreement of indemnification by McKenna and Stants in favor of Kramer and by the Gravel Co. in favor of McKenna.
McKenna's third-party suit against Gravel Co., which is based upon a breach of an implied warranty of fitness of the sand furnished, was commenced in 1964. The sand or gravel was sold to McKenna in 1956. An action upon a contractual obligation or liability, express or implied, must be commenced within six years, (Civil Practice Law and Rules, § 213). A cause of action for...
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