Opinion
May 8, 1942.
Appeal from Supreme Court of New York County, ROSENMAN, J.
Martin Lippman of counsel [ William M. Smith and Stephen S. Bernstein with him on the brief; McLaughlin Stern, attorneys], for the appellant.
John E. Haigney of counsel [ Miner W. Tuttle with him on the brief; Scandrett, Tuttle Chalaire, attorneys], for the respondent American Home Products Corporation.
The defendant American Home Products Corporation having bought its peace and having obtained, as part thereof, a discontinuance of the plaintiff's cause of action as against it, should not be permitted to litigate in this action any claim it may now have against the individual defendants. To do so before a jury might prejudice the individual defendants by disclosing the fact that one of the original defendants had settled with the plaintiff. ( Nauss v. Nauss Brothers Co., 195 N.Y. 328 .) Any claim which American Home Products Corporation may now allege will not arise because of any recovery by the plaintiff herein, but by reason of an independent obligation. Section 264 of the Civil Practice Act is not applicable to the situation now presented.
The order appealed from, in so far as it grants leave to the defendant American Home Products Corporation to amend its cross-complaint, should be reversed, without costs, and the motion to that extent denied, without prejudice to the right of said defendant to institute a separate action against the individual defendants. In all other respects the order should be affirmed.
TOWNLEY and UNTERMYER, JJ., concur; GLENNON, J., dissents and votes to affirm.
Order, in so far as it grants leave to the defendant American Home Products Corporation to amend its cross-complaint, reversed, without costs, and the motion to that extent denied, without prejudice to the right of said defendant to institute a separate action against the individual defendants. In all other respects the order is affirmed.