Opinion
February 4, 1938.
William Gibbs, for the plaintiff.
Van Orman Guilfoil [ Anthony T. Antimozzi of counsel], for the defendant.
Shapiro, Kolbrener Schlissel [ Abraham Schlissel of counsel], for the impleaded defendant.
Motion granted and the clerk is directed to tax costs in favor of the impleaded George Bernhard against the defendant Libray Realty Corporation. Further ordered that the judgment entered on January 10, 1938, be amended so as to include the costs so taxed. While there is no specific statutory provision for costs in favor of an impleaded defendant, it would seem that where, as here, the impleaded defendant was brought in by the original defendant pursuant to the provisions of section 193 of the Civil Practice Act, by which bringing in the respective positions of the original defendant and the impleaded defendant became in fact, though not in name, those of plaintiff and defendant, that the impleaded defendant, under section 1475 of the Civil Practice Act, is entitled to costs against the defendant who, in a position akin to that of a plaintiff, seeks a recovery against such impleaded defendant. Moreover, even admitting that section 1475 of the Civil Practice Act is not here applicable, it is within the discretion of the court to award costs to the impleaded defendant. (Civ. Prac. Act, § 1477.) Inasmuch as the impleaded defendant was brought into court by no fault of his own, but by the assertion of a groundless claim, I believe he is entitled to be indemnified to the extent that taxable costs will provide such indemnification. Order filed.