Opinion
March 25, 1971
The appeal from the order of Supreme Court, New York County, entered on September 5, 1969 (the original decision) is dismissed as academic, without costs and without disbursements. (See 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 5517.01, 5701.23, text at note 89.) Order, Supreme Court, New York County, entered October 21, 1969, granting reargument and adhering to the original decision denying plaintiff's motion for summary judgment pursuant to CPLR 3213 and granting defendant's motion to require plaintiff to join an additional party defendant, unanimously reversed, on the law, plaintiff's motion for summary judgment granted, and defendant's cross motion to include an additional party defendant denied; and appellant shall recover of respondent $50 costs and disbursements of said appeal. In an action brought by a third party in the Supreme Court, Westchester County, against the plaintiff and defendant herein a judgment was entered against them jointly. Plaintiff paid the full amount of that judgment. This action seeking contribution from defendant followed. The essential averments of plaintiff's affidavit in support of his summary judgment motion stand undenied. Defendant seeks to defeat plaintiff's application by contending that he was released from all obligations to plaintiff by a written agreement dated March, 1964. However, a reading of that agreement discloses that the release contemplated thereby applied only to ventures between the defendant and plaintiff's deceased brother and from which ventures plaintiff was excluded. Further, the agreement contemplated an exchange of releases between defendant and the estate. It was to be given by the estate with respect to matters in which there was no identity of interest with plaintiff. No release was contemplated covering those matters in which the plaintiff was involved, nor is there any mention in the agreement of a release by the plaintiff. Furthermore, defendant has not established that any release was ever delivered. Defendant has failed to present any factual issue requiring a trial and plaintiff's motion for summary judgment should have been granted. It was likewise error to direct plaintiff to bring in the estate of his deceased brother as an additional defendant. Plaintiff asserts no claim against the estate. On the contrary, he states that he has none. If the defendant has any claim against the estate he is in nowise precluded from asserting it. No question has been raised by either party as to the propriety of the use of an application under CPLR 3213 in the circumstances of this case. (But see Holmes v. Allstate Ins. Co., 33 A.D.2d 96 .) Since there was no objection raised on the procedural ground, the parties will be deemed to have chosen the procedure they wished to follow, and there is no valid reason for the court to raise any such question. ( Stevenson v. News Syndicate Co., 302 N.Y. 81; Reilly v. Insurance Co. of North America, 32 A.D.2d 918.)
Concur — McGivern, J.P., Markewich, Nunez, Kupferman and Tilzer, JJ.