Branch v. Town of Eastchester

258 A.D. 727, 14 N.Y.S.2d 863, 1939 N.Y. App. Div. LEXIS 6655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1939
• Status: Published

Opinion

Action for damages for personal injuries suffered by the plaintiff wife while a passenger in an automobile which was precipitated into an opening in the street of the defendant municipal corporation, and companion action by the plaintiff husband for loss of services and property damage. Order denying motion of the defendant for leave to implead Daniel E. MeNamee & Co., Inc., a contractor, and to serve an amended answer and cross-complaint asserting liability over to the defendant municipal corporation for the condition of the highway of which plaintiffs complain, reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs, the pleading to be served within ten days from the entry of the order hereon. Under section 193, subdivision 2, of the Civil Practice Act, the defendant municipal corporation was entitled to bring in the contractor as a defendant. While it does not appear that the defendant sought to be impleaded is liable over “ by reason of contract,” it does appear that such defendant may be liable over “ by reason of * * * status.” (Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305; Interborough Rapid, Transit Co. v. City of New York, 237 App. Div. 612; Scott v. Curtis, 195 N. Y. 424.) The determination of the issue presented by the cross-complaint will not tend to confuse the issue tendered by the plaintiffs. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.