
    Irving Barelko, Respondent, v. Powder Power Tool Corp. et al., Defendants, and Lubanko Tool Co., Inc., Appellant.
   Order entered on December 12, 1961 affirmed, with $20 costs and disbursements to the respondent. Concur — Valente, McNally, Eager and Steuer, JJ.; Breitel, J. P., concurs in the following memorandum: I concur solely upon the ground that appellant’s laches constitute a bar to the belated assertion of the res judicata defense. Appellant is in no better position than was the codefendant in this action who was also denied leave to assert the defense in an amended answer. In this court laches was the only ground assigned for the denial of such leave (14 A D 2d 670). However, I would have otherwise regarded the defense as arguably sufficient for the purpose of being tendered in a motion for leave to amend the answer. It appears from the pleadings that appellant’s tort liability, if any, may be entirely derived from that of another codefendant, the actual maker of the offending device, which plaintiff sued in a prior action. If so, appellant would have a right of indemnity against that defendant, and the dismisal of the prior action with prejudice might bar the present action against appellant, even though it was not a party to the prior lawsuit (Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14; cf. Elder v. New York & Penn. Motor Express, 284 N. Y. 350; see Anno. Res Judicata 133 A. L. R. 181; Restatement, Judgments, § 96; 1 Freeman, Judgments [5th ed.], §§ 451, 452).  