Opinion
January 28, 1938.
Appeal from Supreme Court, New York County.
Present — Martin, P.J., O'Malley, Townley, Glennon and Untermyer, JJ.;
The judgment should be modified so as to provide that the dismissal of the claim over of The National City Bank against Anna Stark, individually, is without prejudice. The trial court was correct in ruling that Anna Stark, individually, is not an indemnitor of the liability of the bank and also that she is not primarily liable for the loss to the estate. In our view of the case, however, Anna Stark as an individual is equally responsible with the bank and Transamerica Corporation for the loss. The amount for which she may be liable cannot be fixed on the present claim over. In order, therefore, to prevent any question with respect to the judgment being a bar to any action which the appellants may hereafter see fit to bring against her for contribution or to impose liability on any other basis, we believe that the dismissal should be without prejudice. ( Steele v. Leopold, 135 App. Div. 247, 259.)
The judgment, so far as appealed from, should accordingly be modified, without costs, and the orders appealed from affirmed.
Judgment, so far as appealed from, unanimously modified as indicated in opinion, without costs, and the orders appealed from affirmed. Settle order on notice. [ 161 Misc. 51.]