Folkowitz v. Brooklyn Trust Co.

252 A.D. 860, 299 N.Y.S. 539, 1937 N.Y. App. Div. LEXIS 6585

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1937
• Status: Published

Opinion

Action for personal injuries owing to plaintiff’s suffering a fall in an apartment house, as a consequence of obstructions placed in the vestibule by the proposed defendant H. S. Levy & Sons, Inc., at the direction of defendant Fortunoff, the premises being under control of defendant Brooklyn Trust Company. Order denying motion of Brooklyn Trust Company for leave to serve an amended answer with a cross-complaint against defendant H. S. Levy & Sons, Inc., reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, without costs; the amended answer to be served within ten days from the entry of the order hereon. H. S. Levy & Sons, Inc., stands in the relation of an indemnitor to defendant Brooklyn Trust Company under the facts set out in the complaint. (Hailfinger v. Meyer, 215 App. Div. 35; Scott v. Curtis, 195 N. Y. 424.) The plaintiff has evinced no objection to H. S. Levy & Sons, Inc., being made a party defendant; therefore, the motion of Brooklyn Trust Company to serve an amended answer with a cross-complaint, making H. S. Levy & Sons, Inc., a codefendant, on the theory that it is one of those primarily liable and, therefore, stands in the relation of an indemnitor to the movant, should have been granted. (Fox v. Western New York Motor Lines, Inc., 257 N. Y. 305.) Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.