Lodolce v. Fidelity

225 A.D. 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1929
• Status: Published

Opinion

Order, as resettled, granting motion of defendants Holman and Franz to dismiss the cross-pleading of defendant United States Fidelity and Guaranty Company modified by allowing defendant United States Fidelity and Guaranty Company to serve an amended pleading changing the word “ December ” in the 5th paragraph to “ September,” and as so modified affirmed, without costs. The propriety of serving the cross-pleading pursuant to an order of this court (which is not in this record for review) under section 193 of the Civil Practice Act may not be considered. (Travlos v. Commercial Union of America, Inc., 217 App. Div. 352, 359.) The permitting of the United States Fidelity and Guaranty Company to serve a cross-pleading against the defendants Holman and Franz was proper under section 193 of the Civil Practice Act. (Travlos v. Commercial Union of America, Inc., supra; Carmody’s New York Practice [1924 Supp.], 61 et seq.) The only questions which may be considered under the notice of motion relate to the legal sufficiency, as such, of the pleading attacked and the claim with respect to the pendency of a prior action involving the same subject-matter. (1) With the substitution of the word “ September ” for the word “ December,” as indicated, the pleading is sufficient in law. (2) The United States Fidelity and Guaranty Company is not a party to the prior action, which may, if necessary, on proper motion, be consolidated with this action. Apart from such a consolidation defendants Holman and Franz are not subjected to the hazard of more than one satisfaction of such obligations, if any, that they may be under to the plaintiff LoDolce, or defendant United States Fidelity and Guaranty Company. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.