Massey Concrete Products Co. v. Powell

Appellate Division of the Supreme Court of New York

Massey Concrete Products Co. v. Powell

4 A.D.2d 951, 167 N.Y.S.2d 707, 1957 N.Y. App. Div. LEXIS 4114

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 1957

StatusPublished

This text of 4 A.D.2d 951 (Massey Concrete Products Co. v. Powell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Massey Concrete Products Co. v. Powell, 4 A.D.2d 951, 167 N.Y.S.2d 707, 1957 N.Y. App. Div. LEXIS 4114 (N.Y. Ct. App. 1957).

Pincite

Opinion

Action to recover for goods sold and delivered, in which the defendant-respondent, the contract debtor, makes no defense to appellant’s demand but by a third-party complaint brings in Great Eastern Fuel Co., Inc., which, in its third-party answer, seeks to offset appellant’s demand by an asserted claim in negligence. The appeal is from an order denying appellant’s motion to strike out the answer and for summary judgment pursuant to rules 112 and 113 of the Rules of Civil Practice. Order modified by striking from the ordering paragraph “in all respect[s] denied ” and by substituting therefor a provision that the motion for summary judgment striking out the answer be granted pursuant to rule 113 of the Rules of Civil Practice, and that in all other respects the motion be denied. As so modified, order affirmed, with $10 costs and disbursements to appellant payable by both respondents, and third-party action dismissed. The record discloses that Great Eastern, the third-party defendant, is not attempting to assert a defense which Powell, the third-party plaintiff, had against the claim of Massey Concrete Products Company, the plaintiff in the main action. Such counterclaim could not be interposed since Massey has made no claim against Great Eastern (Feldstein v. Berner, 278 App. Div. 828). Nolan, P. J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Action to recover for goods sold and delivered, in which the defendant-respondent, the contract debtor, makes no defense to appellant’s demand but by a third-party complaint brings in Great Eastern Fuel Co., Inc., which, in its third-party answer, seeks to offset appellant’s demand by an asserted claim in negligence. The appeal is from an order denying appellant’s motion to strike out the answer and for summary judgment pursuant to rules 112 and 113 of the Rules of Civil Practice. Order modified by striking from the ordering paragraph “in all respect[s] denied ” and by substituting therefor a provision that the motion for summary judgment striking out the answer be granted pursuant to rule 113 of the Rules of Civil Practice, and that in all other respects the motion be denied. As so modified, order affirmed, with $10 costs and disbursements to appellant payable by both respondents, and third-party action dismissed. The record discloses that Great Eastern, the third-party defendant, is not attempting to assert a defense which Powell, the third-party plaintiff, had against the claim of Massey Concrete Products Company, the plaintiff in the main action. Such counterclaim could not be interposed since Massey has made no claim against Great Eastern (Feldstein v. Berner, 278 App. Div. 828). Nolan, P. J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

4 A.D.2d 951, 167 N.Y.S.2d 707, 1957 N.Y. App. Div. LEXIS 4114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/massey-concrete-products-co-v-powell-nyappdiv-1957.

Opinion

Related

Cite This Page — Counsel Stack