
    New York Merchandise Company, Inc., Respondent, v. McGraw-Hill Publishing Company, Inc., Appellant and Respondent, and Acme News Pictures, Inc., Appellant.
   Per Curiam.

There is not a sufficient measure of identity between the cause of action of the plaintiff against the defendant and the cross-claim of the defendant against the impleaded defendant to justify inclusion in one action.

The order appealed from should be modified by granting the motion of the impleaded defendant to vacate the order entered February 18, 1942, bringing in said defendant as a party and as so modified affirmed with ten dollars costs and disbursements to the said defendant against the defendant, McGrawHill Publishing Company, Inc., and with ten dollars costs and disbursements to the plaintiff against the defendant, McGraw-Hill Publishing Company, Inc.

Present — Martin, P. J., Townley, Glennon, Untfermyer and Dore, JJ.

Order unanimously modified by granting the motion of the impleaded defendant to vacate the order entered February 18, 1942, bringing in said defendant as a party, and as so modified affirmed, with ten dollars costs and disbursements to the said defendant against the defendant, McGraw-Hill Publishing Company, Inc., and with ten dollars costs and disbursements to the plaintiff against the defendant, McGraw-Hill Publishing Company, Inc.  