City and County Sav. Bank v. M. Kramer & Sons, Inc.

• Court: United States State Supreme Court (New York)
• Writing for the Court: HAROLD E. KOREMAN
• Citation: 252 N.Y.S.2d 224,43 Misc.2d 731
• Decision Date: 06 August 1964
• 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.

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252 N.Y.S.2d 224 43 Misc.2d 731 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. Supreme Court, Albany County. Aug. 6, 1964.

Page 225

[43 Misc.2d 732] 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.

HAROLD E. KOREMAN, Justice:

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,

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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 [43 Misc.2d 733] 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,...