Opinion
July 12, 1967
Order of the Supreme Court, Kings County, dated March 17, 1967, reversed, with $10 costs and disbursements; amended third-party complaint dismissed, and summary judgment granted to third-party defendant-appellant Banner Roofing Co., Inc. In this severed third-party action, the amended third-party complaint alleges that the parties at bar had entered into a joint venture agreement to perform certain roofing work and to share equally the profits and losses in connection therewith. During the performance of that work, the third-party plaintiff, Gelfand, injured McCabe, the plaintiff in the original action, who subsequently recovered judgments against Gelfand in the total sum of $176,966.50. The amended third-party complaint does not allege, nor does the proof submitted upon the third-party defendant Banner's motion for summary judgment show, that Gelfand has paid any sum in diminution of the judgments obtained by McCabe. Nevertheless, Gelfand demands a present payment to him of one half the sum of the judgments obtained by McCabe. In our opinion, the amended third-party complaint fails to state a cause of action and Banner's motion for summary judgment should have been granted ( Hard v. Mingle, 206 N.Y. 179; see Asylum of St. Vincent de Paul v. McGuire, 239 N.Y. 375; 10 N.Y. Jur., Contribution, §§ 1-3). Christ, Acting P.J., Brennan, Rabin and Hopkins, JJ., concur: Nolan, J., dissents and votes to affirm the order, with the following memorandum: The third-party action against appellant was brought on the theory that it is or may be liable to respondent pursuant to a joint venture agreement which has otherwise been fully performed, for part of plaintiff's complaint against respondent (former Civ. Prac. Act, § 193-a; CPLR 1007). Under the third-party practice formerly provided by the Civil Practice Act, and now by the Civil Practice Law and Rules, it is not necessary for the third-party plaintiff to establish a present and absolute liability over, when the third-party plaintiff's right to reimbursement depends upon the discharge of a judgment against him ( Rizzo v. Steiner, 36 Misc.2d 701, 703). In such a case, even if no payment has been made by the third-party plaintiff of any sum in diminution of the judgment against him, a judgment may be entered against the third-party defendant conditional upon such payment by the third-party plaintiff ( County of Oswego v. American Sur. Co., 63 N.Y.S.2d 723, 725, affd. 272 App. Div. 862). The papers and proofs submitted are insufficient to warrant the court as a matter of law in directing judgment in favor of appellant.