Joseph v. R. & M. Embroidery Co.

The third-party defendant moves for dismissal of the third-party complaint upon the ground that it does not state facts sufficient to constitute a cause of action and that it is not properly interposed in this action.

The third-party plaintiffs allege that, by virtue of certain transactions and grievances, they had reached a settlement with the defendant. The latter was, among other things, to redeliver to the third-party plaintiffs certain notes which defendant failed to do. The action of the plaintiffs against the defendant is upon four of those notes totaling $600. The third-party plaintiffs seek to recover over the sum of $600 or, in the alternative, a larger sum of money representing the principal amount of the notes which were not returned by the defendant. It is the contention of the third-party defendant that by seeking a recovery in excess of the demand of the plaintiffs the third-party plaintiffs have exceeded the limits of section 193-a of the Civil Practice Act. Since the primary relief sought is the recovery of $600 and the relief otherwise demanded is in the alternative, plaintiffs may properly recover over any loss sustained by rea*393son of the plaintiffs’ complaint and, in that event, the demand for alternative relief will not be reached. Defendant further contends that the third-party plaintiffs do not seek relief by contribution or indemnity. It is a fact, however, that under the allegations of the third-party complaint, the third-party defendant is or may be liable to them for all or part of plaintiffs’ claim against them. Finally, it is argued that the third-party complaint is deficient for failure to allege performance of the settlement agreement. However, the third-party plaintiffs do allege the obligations of the settlement agreement on their part and specifically allege the performance of those obligations. The motion is denied. [See, also, 21 Misc 2d 150, 151, 224.]