
    American Home Assurance Company, Plaintiff, v. Richard Botto et al., Copartners Doing Business under the Name of Botto Sanitary Service, Defendants.
    Supreme Court, Special Term, Queens County,
    August 9, 1961.
    
      Marvin, Montfort, Mealy & Cuff for Richard Wesnofske, defendant. Max J. Gwertzman for plaintiff.
   Gteoege P. Stier, J.

An insured brought an action against his insurance company for the payment of a claim under the policy of insurance issued by plaintiff. That action is now pending, undetermined, in the Municipal Court of the City of New York, Borough of Queens. The insurance company subsequently brought a separate action in this court against the persons who it claims negligently caused the loss, upon the basis of which its assured claims payment in the first action. Those persons now move to dismiss the complaint of the insurance company for legal insufficiency.

It is alleged in the complaint of the insurance company that this action is in the nature of a third-party proceeding “ because of the fact that the plaintiff is unable to bring the defendant into the original action brought in the Municipal Court since the jurisdiction of the Municipal Court does not extend to Hieksville, New York, where the defendant is domiciled.” Section 193-a of the Civil Practice Act, which is the only statute authorizing impleader or third-party practice, does not permit liability over to be asserted in separate actions. Accordingly, until the plaintiff herein has paid the claim of its assured, it has no separate action for recoupment against those who were responsible for the loss. The right to recoupment for such loss by a separate action will not accrue until the plaintiff has paid its assured’s claim. (See Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214; Milstein v. City of Troy, 272 App. Div. 625.)

The motion to dismiss the present complaint is accordingly granted, without prejudice.  