Opinion
January 25, 1974
Present — Witmer, J.P., Cardamone, Goldman and Del Vecchio, JJ.
Motion granted and appeal dismissed without prejudice to its reinstatement if, following the new trial granted by this court ( Phillips v. Chevrolet Tonawanda Div. of Gen. Motors Corp., 43 A.D.2d 891, decided Jan. 11, 1974) appellant Modern Equipment Company is so advised. Memorandum: If upon a retrial of the main action a verdict results in favor of plaintiffs, then the determination previously made by the trial court which imposed liability over upon appellant Modern Equipment Company as a matter of law and the judgment resulting therefrom will become operable subject to review on appeal. From that judgment (filed in the Erie County Clerk's office October 29, 1973) Modern may reinstate its appeal, if so advised. Absent a plaintiffs' verdict in the main action, however, Modern's appeal from the judgment in the third-party action becomes academic.