Victory Painters & Decorators v. Miller
| Decision Date | 20 March 1950 |
| Citation | 198 Misc. 196 |
| Parties | Victory Painters and Decorators, Inc., Plaintiff,<BR>v.<BR>Bernard Miller et al., Defendants and Third-Party Plaintiffs. Onyx Oils and Resins, Inc., Third-Party Defendant. |
| Court | New York Supreme Court |
Louis Epstein for third-party defendant.
Emanuel Strum for defendants and third-party plaintiffs.
Abraham M. Fisch for plaintiff.
This is a motion by the third-party defendant to strike out the second cause of action contained in the amended third-party complaint pursuant to subdivision 4 of section 193-a of the Civil Practice Act. The action is one brought by plaintiff to recover damages in the sum of $4,000 allegedly sustained by it as a result of an alleged breach of warranty by the defendants in the sale of certain replacement linseed oil.
The defendants, as third-party plaintiffs and pursuant to section 193-a, have impleaded the manufacturer and processor of the said replacement linseed oil as a third-party defendant, claiming judgment over for any sums of money which plaintiff may recover against such defendants and third-party plaintiffs. In addition, the third-party plaintiffs in their second cause of action seek an affirmative judgment for an additional sum of $8,000 for loss of plaintiff's future business and custom as a result of the alleged breaches of warranty. No objection is made by the third-party defendant to the first cause of action pleaded by the third-party plaintiffs.
Under subdivision 1 of section 193-a of the Civil Practice Act, defendant as a third-party plaintiff is permitted to bring in a third-party defendant "who is or may be liable to him for all or part of the plaintiff's claim against him." The third-party plaintiff is thus permitted to implead a person not a party to the action only if the latter has "`the obligation of exonerating or reimbursing the defendant (third party plaintiff) for all or part of the plaintiff's recovery against him'" (Green v. Hudson Shoring Co., 191 Misc. 297, 301). In such respect the Judicial Council's Twelfth Annual Report states: ...
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George Cohen Agency, Inc. v. Donald S. Perlman Agency, Inc.
...to include any claims for relief beyond that prayed for by the plaintiff in the original complaint (accord, Victory Painters & Decorators v. Miller, 198 Misc. 196, 101 N.Y.S.2d 350). Likewise, where a third-party defendant added a claim for attorney's fees, the Supreme Court, Nassau County,......
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George Cohen Agency, Inc. v. Donald S. Perlman Agency, Inc.
...(See, e. g., Carroll Sheet Metal Works v. Mechanical Installations, 201 Misc. 689, 690, 110 N.Y.S.2d 581; Victory Painters & Decorators v. Miller, 198 Misc. 196, 101 N.Y.S.2d 350.) Others have focused upon not only the amount, but also the nature of a third-party claim and the literal langu......
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Bennett Excavators Corp. v. Lasker-Goldman Corp., LASKER-GOLDMAN
...may not assert an affirmative claim for his own damages. Gleason v. Sailer, 203 Misc. 227, 116 N.Y.S.2d 409; Victory Painters & Decorators v. Miller, 198 Misc. 196, 101 N.Y.S.2d 350; Golding v. Veal, 191 Misc. 210, 77 N.Y.S.2d 157; Carroll Sheet Metal Works, Inc. v. Mechanical Installations......
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Marine Midland Bank, N. A. v. Bowker
...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 monet......