
    Philip Joseph, Plaintiff, v. R. & M. Embroidery Co. Inc. et al., Defendants. R. & M. Embroidery Co. Inc. et al., Third-Party Plaintiffs, v. Edward S. Friedland, Third-Party Defendant.
    Supreme Court, Special Term, New York County,
    November 2, 1959.
    
      Abraham Abramowits for plaintiff.
    
      Henry B, SeTkowe for defendants and third-party plaintiffs.
    
      Edward 8. Friedland, third-party defendant in person, and for New York Pharmacists Discount Corp., defendant.
   Francis X. Conlon, J.

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 reason 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.]  