Opinion
April 6, 1961
Appeal from the Oneida Special Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Order modified to the extent of granting leave to serve an amended third-party complaint and as modified affirmed, without costs of this appeal to any party. Memorandum: The order dismissing the third-party complaint against the third-party defendant is sustained, not upon the ground that no case for recovery over could possibly be made out against that defendant under the principles governing indemnity between tort-feasors, but rather upon the ground that the third-party complaint does not allege facts showing negligence of any kind on the part of the third-party defendant. In view of this ground for our decision, we believe it to be appropriate to give the third-party plaintiff leave to amend the third-party complaint, if so advised. The order is therefore modified by giving the third-party plaintiff leave to serve an amended complaint within 10 days after the service of the order to be entered herein.
We dissent from that part of the order that permits an amendment. Not only does the third-party complaint fail to state a cause of action, but it is obvious from all of the pleadings that no cause of action can successfully be maintained and proved by the third-party plaintiff against the third-party defendant, regardless of what is alleged by amendment. It is futile, therefore, to permit an amendment, which can only needlessly protract this litigation.