Johnson v. Harrison Engineering & Contracting Corp.

224 A.D. 671

Opinion

Order denying motion to strike out the second defense in respondent’s answer affirmed, with ten dollars costs and disbursements. No opinion. Lazansky, P. J., Carswell and Scudder, JJ., concur; Kapper and Hagarty, JJ., dissent and vote for reversal, with the following memorandum: We are of opinion that the fact that the same negligent act of which plaintiff complains may have resulted in damage to another, does not permit that other to litigate as between him and his codefendant merely because he was brought in, charged with a separate act of negligence. The matters alleged in respondent’s answer under the heading “ Second Defense ” constitute neither a defense nor a counterclaim to plaintiff’s cause of action. (Civ. Prac. Act, §§ 261, 266.) The provisions of sections 264 and 474 of the Civil Practice Act, which authorize one defendant to serve an answer on another and demand a determination of his rights as against such codefendant, do not authorize litigation between defendants which is entirely independent of and in no way connected with the demand of the plaintiff. (Powers v. Savin, 64 Hun, 560; Van Allen v. Rogers, 5 Misc. 420; Kay v. Whittaker, 44 N. Y. 565; Smith v. Hilton, 50 Hun, 236; Rafferty v. Williams, 34 id. 544; Lansing v. Hadsdll, 26 id. 619; Williams v. Tompkins, Inc., 208 App. Div. 574; Youngman v. New York Indemnity Co., 120 Misc. 687; Nauss v. Nauss Brothers Co., No. 2, 195 App. Div. 328.)