Marine Midland Bank, N. A. v. Bowker

• Citation: 439 N.Y.S.2d 617,109 Misc.2d 39
• Court: New York County Court
• Decision Date: 30 May 1981
• Parties: MARINE MIDLAND BANK, N. A., Plaintiff, v. Edward T. BOWKER, Defendant. Edward T. BOWKER, Third-Party Plaintiff, v. John F. BYRNE, d/b/a Jack Byrne Ford & Mercury, and For-Del, Inc., d/b/a Ford Motor Company, Third-Party Defendants.

Page 617

439 N.Y.S.2d 617

109 Misc.2d 39

MARINE MIDLAND BANK, N. A., Plaintiff, v. Edward T. BOWKER, Defendant.

Edward T. BOWKER, Third-Party Plaintiff, v. John F. BYRNE, d/b/a Jack Byrne Ford & Mercury, and For-Del, Inc., d/b/a Ford Motor Company, Third-Party Defendants.

Saratoga County Court.

May 30, 1981.

Robert S. Bernard, Albany, for plaintiff.

Paul M. Whitaker, Albany, for defendant/third-party plaintiff.

John F. Byrne, third-party defendant, pro se.

McNamee, Lochner, Titus & Williams, P. C., Albany, for third-party defendant Ford Motor Co.

DECISION

LOREN N. BROWN, Judge.

By notice of motion and supporting affidavits, each dated April 24, 1981, the defendant and third-party plaintiff moves for various forms of relief. There is no opposition to any aspect of the motion by either the original plaintiff or the third-party defendants.

The sole issue before the court is whether it has jurisdiction to grant the third-party plaintiff certain relief requested. Specifically, the court must determine whether it has jurisdiction to allow plaintiff to amend his complaint to increase the amount claimed in damages against the third-party defendant to $10,843.35 from $8,000.00. The demand, as amended, is in excess of the amount demanded in the primary action ($3,300.80 with interest), and also in excess of the monetary limitations of county court as it would apply to the original action.

Pursuant to the Judiciary Law § 190-b(1), once jurisdiction attaches as a result of the original complaint, this court "possesses the same jurisdiction, power and authority in and over the same, and in the course of the proceedings therein, that the supreme court possesses in a like case; and it may render any judgment or grant either party any relief that the supreme court may render or grant in a like case...." Part of the effect of the section is to give the county court jurisdiction over counterclaims (Howard Iron Works v. Buffalo Elevating Co., 176 N.Y. 1, 68 N.E. 66), cross-claims (Smith Bros. Plumbing Co. v. Engine Air Service, 279 A.D. 1082, 112 N.Y.S. 107), and impleader actions such as the case at bar (Bussing v. Whitaker, 177 A.D. 95, 163 N.Y.S. 982) without specifically limiting the subject matter of those secondary actions.

In and of itself, § 190-b(1) of the Judiciary Law appears to be a salutary statute promoting rapid and complete settlement of litigation by one action. But applied in conjunction with the recent case of Cohen v. Pearlman, 69 A.D.2d 725, 419 N.Y.S.2d 584, affirmed, 51 N.Y.2d 358, 434 N.Y.S.2d 189, 414 N.E.2d 689, it can lead to an apparently unintended result.

Prior to Cohen, supra, if a plaintiff sued a defendant who, as third-party plaintiff, impleaded a third-party defendant, pursuant to CPLR 1007, the damages recoverable from the third-party defendant were limited to the original plaintiff's claim, Otto v. Wegner, 11 Misc.2d 499, 172 N.Y.S.2d 499; Victory Painters & Decorators, Inc. v. Miller, 198 Misc. 196, 101 N.Y.S.2d 350; Funt v. Ruiz, 58 A.D.2d 801, 396 N.Y.S.2d 418. Perforce, if the original action was within a county court's monetary limitations the subsequent third-party action could not exceed it. Cohen, supra, overruled this prior line of cases. Both the Supreme Court, Appellate Division, Second Department, and the...