Phillips v. Chevrolet Tonawanda Division of General Motors Corp.

—Motion granted and appeal dismissed without prejudice to its reinstatement if, following the new trial granted by this court (Phillips v. Chevrolet Tonawanda Div. of Gen. Motors Corp., 43 A D 2d 891, decided Jan. 11, 1974) appellant Modern Equipment Company is so advised. Memorandum: If upon a retrial of the main action a verdict results in favor of plaintiffs, then the determination previously made by the trial court which imposed liability over upon appellant Modern Equipment Company as a matter of law and the judgment resulting therefrom will become operable subject to review on appeal. From that judgment (filed in the Erie County Clerk’s office October 29, 1973) Modem may reinstate its appeal, if so advised. Absent a plaintiffs’ verdict in the main action, however, Modem’s appeal from the judgment in the third-party action becomes academic. Present — Witmer, J. P., Cardamone, Goldman and Del Vecchio, JJ.