Kalinowski v. Rock Asphalt & Construction Co.

Order reversed in the exercise of discretion, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon the ground that the moving papers do not show sufficient facts to warrant the court in holding that the Truck Equipment Company, Incorporated, is or will be liable to the original defendant wholly or in part for the claim made against it, and in exercising its discretion in bringing in said Truck Equipment Company, Incorporated, as a party defendant. All concur, except Sears, P. J., and Thompson, J., who dissent and vote for affirmance on the ground that the defendant Rock Asphalt and Construction Company, Incorporated, *658 shows in its affidavits that its liability, if it is liable at all, is based solely on negligence in failing to discover a defect in a truck, and that such negligence is a ground for liability secondary to that of the one creating the defect, viz., the defendant Truck Equipment Company, Incorporated, and in our opinion the case falls within subdivisión 2 of section 193 of the Civil Practice Act,* as one where the defendant Truck Equipment Company, Incorporated, is or will be liable to the defendant Rock Asphalt and Construction Company, Incorporated, for the claim made against that defendant and there is no sufficient reason why the question of primary and secondary liability between the two defendants should not be determined in the action which the plaintiff has brought against the defendant Rock Asphalt and Construction Company, Incorporated. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.