McCabe v. Queensboro Farm Products, Inc.
| Citation | 13 A.D.2d 674,213 N.Y.S.2d 456 |
| Parties | Bernard McCABE, Plaintiff, v. QUEENSBORO FARM PRODUCTS, INC., and Sam Gelfand, individually and doing business under the firm name and style of Eagle Roofing & Sheet Metal Works, Defendant. Sam GELFAND, etc., Third-Party Plaintiff-Appellant, v. BANNER ROOFING Co., Inc., Third-Party Defendant-Respondent. |
| Decision Date | 03 April 1961 |
| Court | New York Supreme Court Appellate Division |
Lawless & Lynch, New York City, for appellant; B. Leo Schwarz, New York City, of counsel.
Martin A. Crean, New York City, for respondent; Jeremiah G. Mahony, New York City, of counsel.
Before NOLAN, P. J., and UGHETTA, CHRIST, PETTE and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, in which defendant Gelfand, as third-party plaintiff, served a third-party complaint against the corporation, Banner Roofing Co., Inc., as third-party defendant, the third-party plaintiff appeals from an order of the Supreme Court, Kings County, dated January 24, 1961, granting said corporation's motion to dismiss the third-party complaint.
Order modified by adding thereto a provision that, within thirty days after entry of the order hereon, said third-party plaintiff, if so advised, may serve an amended third-party complaint. As so modified, order affirmed, without costs.
In the present third-party complaint, appellant sought to implead the respondent corporation on the theory that he and the corporation were joint venturers in the performance of the acts alleged to have caused the injuries complained of in the main action; and that by the terms of their joint venture agreement they had agreed to share equally the profits and to bear equally the losses that might result from the doing of the work involved in the joint venture. It was alleged that if there should be a recovery against appellant in the main action such recovery would constitute a loss of the joint venture, and that in accordance with their agreement the respondent corporation would be liable to appellant for half of the loss so sustained. Relief against the respondent corporation was demanded by way of an accounting and the award of judgment against it in such amount as, on the accounting, might be found due as its share of such loss.
In our opinion, the third-party complaint does not state facts sufficient to constitute a cause of action for the relief sought, even if it be assumed that appellant's claim against the respondent is...
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...of any adequate remedy at law (Unitel Telecard Distrib. Corp. v. Nunez, 90 AD3d 568, 569 [2011] ; see McCabe v. Queensboro Farm Prods., 13 A.D.2d 674, 674 [1961] ). As discussed above, the plaintiffs' claimed harm may be adequately remedied by money damages. An equitable accounting in these......
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...641, 401 N.Y.S.2d ---, 371 N.E.2d 830; see also Roberts v. Astoria Med. Group, 43 A.D.2d 138, 350 N.Y.S.2d 159; McCabe v. Queensboro Farm Prods., 13 A.D.2d 674, 213 N.Y.S.2d 456; Bigelow v. McMillin, 251 App.Div. 456, 296 N.Y.S. The evidence before the court upon the motion for summary judg......
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McCabe v. Queensboro Farm Products, Inc.
...motion to dismiss this third-party complaint was granted and, on a prior appeal from the order dismissing such complaint (13 A.D.2d 674, 213 N.Y.S.2d 456), this court modified that order to permit the service of an amended third-party Gelfand, on June 7, 1961, served an amended third-party ......
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