Napack v. Grubman

New York Supreme Court

Napack v. Grubman

190 Misc. 718, 75 N.Y.S.2d 67, 1947 N.Y. Misc. LEXIS 3347

CourtNew York Supreme Court

DecidedSeptember 22, 1947

StatusPublished

Cited by5 cases

This text of 190 Misc. 718 (Napack v. Grubman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Napack v. Grubman, 190 Misc. 718, 75 N.Y.S.2d 67, 1947 N.Y. Misc. LEXIS 3347 (N.Y. Super. Ct. 1947).

Pincite

Opinion

Pecora, J.

Motion to dismiss the third party complaint pursuant to subdivision 4 of section 193-a of the Civil Practice Act, is granted. The complaint of plaintiff is based upon fraud. If plaintiff establishes that the third party plaintiffs were guilty of a conspiracy to defraud by falsely representing that they were selling him newsprint, when in fact he received waste paper or newswrap, tjie third party defendants would not be liable over under the allegations of the third party complaint. In the memorandum submitted by third party plaintiffs it is said that the third party complaint states a cause of action lor ££ a breach of contract for the sale of merchandise”. A reading of the pleading discloses a rather strange way to plead such a cause of action. Interwoven in its allegations are charges of breach o ‘ warranty and references to allegations of the plaintiff’s complaint. Except that some of the paper which found its way into plaintiff’s hands came from the third party defendants, the causei of action contained in the complaint and the third party complaint are in no way related. There are no common questions of law or fact in both controversies. To permit the third party complaint to stand here would only result in confusion and unnecessary prejudice to the third party defendants. It is not necessary to have the presence of the third party defendants in this action for a complete determination of the controversy between plaintiff and defendants. There met he more than the mere desire of a party to inject another into an action in [720]*720order to permit impleader under section 193-a of the Civil Practice Act. The relation to the controversy must be direct and involve questions common to both controversies. Otherwise the purpose of the section is destroyed, and instead of clarification and avoidance of multiple actions, the result is confusion and complication.

The other two bases for dismissing the third party complaint are not discussed further except to state that the court has examined the contentions and finds that the pleading improperly joins both third party defendants in one cause of action without any allegations showing joint liability.

The motion is granted without prejudice to the third party plaintiffs’ commencing an independent action. Settle order.

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

Pecora, J.

Motion to dismiss the third party complaint pursuant to subdivision 4 of section 193-a of the Civil Practice Act, is granted. The complaint of plaintiff is based upon fraud. If plaintiff establishes that the third party plaintiffs were guilty of a conspiracy to defraud by falsely representing that they were selling him newsprint, when in fact he received waste paper or newswrap, tjie third party defendants would not be liable over under the allegations of the third party complaint. In the memorandum submitted by third party plaintiffs it is said that the third party complaint states a cause of action lor ££ a breach of contract for the sale of merchandise”. A reading of the pleading discloses a rather strange way to plead such a cause of action. Interwoven in its allegations are charges of breach o ‘ warranty and references to allegations of the plaintiff’s complaint. Except that some of the paper which found its way into plaintiff’s hands came from the third party defendants, the causei of action contained in the complaint and the third party complaint are in no way related. There are no common questions of law or fact in both controversies. To permit the third party complaint to stand here would only result in confusion and unnecessary prejudice to the third party defendants. It is not necessary to have the presence of the third party defendants in this action for a complete determination of the controversy between plaintiff and defendants. There met he more than the mere desire of a party to inject another into an action in [720]*720order to permit impleader under section 193-a of the Civil Practice Act. The relation to the controversy must be direct and involve questions common to both controversies. Otherwise the purpose of the section is destroyed, and instead of clarification and avoidance of multiple actions, the result is confusion and complication.

The other two bases for dismissing the third party complaint are not discussed further except to state that the court has examined the contentions and finds that the pleading improperly joins both third party defendants in one cause of action without any allegations showing joint liability.

The motion is granted without prejudice to the third party plaintiffs’ commencing an independent action. Settle order.

Cite This Page — Counsel Stack

Bluebook (online)

190 Misc. 718, 75 N.Y.S.2d 67, 1947 N.Y. Misc. LEXIS 3347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/napack-v-grubman-nysupct-1947.

Opinion

Related

Cite This Page — Counsel Stack