Opinion
April 19, 1943.
Action by plaintiff pursuant to section 29 Work. Comp. of the Workmen's Compensation Law to recover damages for payments which it made as the carrier of workmen's compensation insurance to an injured employee of the impleaded defendant Verra. Lee, the general contractor and one of the original defendants, obtained an order pursuant to subdivision 2 of section 193 of the Civil Practice Act, directing that defendant Verra be brought in as an additional party defendant and that a supplemental summons and amended answer alleging its claim against Verra be served upon the latter and that he plead thereto. From this order plaintiff appeals. The impleaded defendant Verra moved to vacate the order of impleader. The motion was denied and from that order the impleaded defendant appeals. Order granting the motion to bring in the additional party defendant Verra reversed on the law, with ten dollars costs and disbursements, payable by respondent, and the motion denied, without costs. Appeal from order denying motion to vacate the order of impleader dismissed, without costs. Neither the complaint nor the cross complaint contains any allegations of negligence as to the impleaded defendant Verra. The liability of the third party should clearly appear. When it does not so appear, an order of impleader is improperly granted. ( Nichols v. Clark, MacMullen Riley, Inc., 261 N.Y. 118.) Assuming arguendo that allegations of negligence are present, under the pleadings defendant Lee could be held liable to plaintiff independent of any acts of the impleaded defendant Verra. Under such circumstances, an order of impleader should not be granted. ( Nichols v. Clark, MacMullen Riley, Inc., supra; Schwartz v. Crawford, 261 App. Div. 825; Parness v. Halpern, 257 App. Div. 678.) Close, P.J., Hagarty, Johnston, Taylor and Lewis, JJ., concur.