Focacci v. City of New York

In an action to recover damages for personal injuries alleged to have been sustained in the course of plaintiff’s employment, appellant served a third-party complaint on respondent, plaintiff’s employer. The appeal is from an order granting respondent’s motion to dismiss the third-party complaint for insufficiency, and from the judgment entered thereon. Order modified by striking therefrom everything following the words “ said third party defendant ” and by adding thereto the words “ with leave to Martin Epstein Company, Inc., to serve an amended third-party complaint.” As so modified, order unanimously affirmed, with $10 costs and disbursements to respondent. The amended third-party complaint is to be served, if appellant be so advised, within 20 days after entry of the order hereon. Judgment vacated, without costs. The present third-party complaint fails to state facts from which it could be determined that appellant is other than a joint tort-feasor in pari delicto with respondent. Present—• Nolan, P. J., Wenzel, Beldoek, Murphy and Hallinan, JJ.