Opinion
March 5, 1962
In an action to recover damages for personal injuries, in which the defendant General Bag Corporation, as third-party plaintiff, served a third-party summons and complaint upon Murl L. Smith as third-party defendant, and in which the latter, pursuant to section 264 of the Civil Practice Act, asserted a cross complaint or counterclaim against the third-party plaintiff, the said third-party plaintiff appeals from an order of the Supreme Court, Nassau County, dated April 13, 1961, which denied its motion to dismiss such cross complaint or counterclaim, to sever it, and to grant a separate trial as to it. An automobile owned by the third-party defendant (Smith) was allegedly used in the business of the third-party plaintiff (General Bag Corporation) at the time of an accident in which plaintiffs were injured. The third-party complaint is based on the theory that the third-party defendant was the active tort-feasor. The cross complaint or counterclaim by the third-party defendant against the third-party plaintiff is based on the theory that the latter agreed to furnish insurance to him (the third-party defendant), but failed to do so. Order affirmed, with $10 costs and disbursements. No opinion. Beldock, P.J., Kleinfeld, Brennan, Hill and Rabin, JJ., concur.