
    David W. Doyle, Plaintiff, v. New York City Transit Authority et al., Defendants. City of New York, Third-Party Plaintiff, v. Poirier & McLane Corporation, Third-Party Defendant. New York City Transit Authority et al., Fourth-Party Plaintiffs, v. Poirier & McLane Corporation, Fourth-Party Defendant.
    Supreme Court, Special Term, Kings County,
    June 2, 1959.
    
      Lawless <& Lynch for Poirier & McLane Corporation.
    
      Austin E. Titus, Jr., for plaintiff.
    
      
      Daniel E. Scannell for New York City Transit Authority.
    
      Charles JL. Tenney, Corporation Counsel, for City of New York.
   James S. Brown, J.

Motion by fourth-party defendant to dismiss the fourth-party complaint.

The main complaint alleges, as a first cause of action, that while plaintiff was walking on the sidewalk he was struck by a bus operated by the New York City Transit Authority and defendant Muller as a result of which he sustained injury. A second cause of action was asserted against the City of New York for neglect of duty owed to the public. The City of New York, as third-party plaintiff, served a third-party complaint upon Poirier & McLane Corporation, the third-party defendant. Thereafter the Transit Authority and Muller, as fourth-party plaintiffs, served a fourth-party complaint upon this same defendant as a fourth-party defendant. The time for the fourth-party defendant to answer the fourth-party complaint not having expired when the action was reached for trial, the fourth-party action was severed by the court and not litigated. Plaintiff recovered judgment against defendants New York City Transit Authority, Muller and the City of New York, and judgment over against the moving corporate defendant was granted in favor of the City of New York on its third-party complaint. All defendants have appealed from the judgment and said appeal is now pending.

The fourth-party defendant urges that the fourth-party complaint be dismissed without prejudice on the grounds that the main action has been litigated to a conclusion and that to permit the complaint to stand would confuse the issues and that the action would be premature if brought to trial prior to actual payment to the fourth-party plaintiffs. The reasons advanced for the dismissal are without merit. Furthermore, in the event the judgment is reversed and a new trial ordered, it will be possible to litigate the issues raised by the fourth-party complaint at the same time as the new trial is had by the making of a motion to vacate the order of severance or to consolidate the actions.

Motion denied. Settle order on notice.  