May 2, 1958
Oppenheim Oppenheim for defendants and third-party plaintiffs.
Goldstein Goldstein for third-party defendant.
The third-party defendant moves for summary judgment pursuant to rule 113 of the Rules of Civil Practice and for the dismissal of the complaint of the third-party plaintiff. The original action sought to establish a prescriptive right of way in favor of the plaintiffs in a portion of the defendants and third-party plaintiffs' adjoining lands and for injunctive and divestitive relief. Alleging a covenant against incumbrance the third-party plaintiffs have brought in their grantor, the third-party defendant herein. (Civ. Prac. Act, § 193-a.) While the cause awaited trial, the plaintiffs and defendants effected a compromise of their action and stipulated its discontinuance by order. Concededly, the only question which the motion poses is whether the third-party action survives the settlement and discontinuance of the main action. A compromise of the action in itself, like a mere confession of judgment, could not thereby create a proper basis for judgment over against the movant. However, upon an appropriate showing the third-party plaintiffs might voluntarily pay the plaintiffs their loss or damage resulting from the usurpation without abiding judgment and without jeopardizing their right to implied indemnity against the third-party defendant. The right of recovery over depends on proof of the actionable facts which imposed initial liability as well as the reasonableness of the amount which they paid in settlement. ( Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214; Zuccelli v. City Constr. Co., 286 App. Div. 842; Williams v. Rhode Is. Corp., 281 App. Div. 618. ) Obviously, a trial to resolve these issues is required. Accordingly, the motion for summary relief is denied.