V. B. Construction Co. v. Murray

274 A.D. 1019, 84 N.Y.S.2d 797, 1948 N.Y. App. Div. LEXIS 4495

Opinion

Appeal by a third party defendant from an order denying its motion to dismiss another defendant’s complaint against it for failure to state a valid cause of action, and in the alternative for a separate trial. Plaintiff’s action is for recovery of damages from his subcontractor on account of breach of contract in using defective material (hot mason’s lime instead of hot plastering lime), in the performance of its contract. Defendant’s third party complaint alleges that the fault thus charged against it was due to a breach of contract by the third party defendant in delivering an improper kind of lime instead of that it ordered. The nature of the lime so ordered and that furnished and used, its fitness for the work in which it was employed and the amount of plaintiff’s damages occasioned by its defective quality as regards the use made of it, present questions of law and fact common to both controversies. Such being so it is now inconsequential that a cause of action set forth in the third party complaint sounds partly in tort. (Civ. Prac. Act, § 193-a, added by L. 1946, ch. 971.) Order unanimously affirmed, with $10 costs and disbursements. Present — Hill, P. J., Heffernan, Brewster, Foster and Russell, JJ.