Opinion
January 6, 1941.
Action by plaintiff to recover damages for personal injuries allegedly sustained through the negligence of defendants in "improperly constructing, improperly finishing and in permitting the use of" a certain beverage vending machine. Stewart McGuire, Inc., one of the original defendants, obtained an order, pursuant to subdivision 2 of section 193 of the Civil Practice Act, directing that appellant Karp Metal Products Co., Inc., be brought in as an additional party defendant, and that a supplemental summons and amended answer alleging its claim against Karp be served upon the latter, and that the latter plead thereto. The impleaded defendant moved to vacate the order of impleader. The motion was denied and the impleaded defendant appeals. Order denying the motion to vacate and set aside the order of impleader reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Both claims are not the same and are not based upon the same grounds. Under the allegations in the complaint, a judgment recovered by plaintiff could be, or might be, based entirely or in part upon the sole negligence of the original defendants, having nothing to do with Karp Metal Products Co., Inc. ( Nichols v. Clark, MacMullen Riley, Inc., 261 N.Y. 118.) Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.