
    John W. Cunningham et al., Plaintiffs, v. Cirker’s Moving & Storage Co., Inc., Defendant and Third-Party Plaintiff, et al., Defendants. C. & F. Warehouses, Inc., Third-Party Defendant.
    Supreme Court, Special Term, New York County,
    April 6, 1949.
    
      
      Levy and Berman for third-party defendant.
    
      Robinson, Hennessy & Gales for plaintiffs.
    
      Henry J. Bogatko and Daniel Danaher for defendant and third-party plaintiff.
    
      Rudser, Price, Haskell, Rafferty & Mulligan for Simonsen & Emerson Corporation, defendant.
    
      Shumate, Barrett & Molloy for Joseph Arnold, doing business as Concrete & Rock Breaking Company, defendant.
   Schreiber, J.

To the extent that this motion seeks to dismiss the third-party complaint for alleged insufficiency, it is denied. It is possible that the plaintiffs may recover against the third-party plaintiff on the basis of the allegations of the complaint that the third-party plaintiff warranted that the warehouse was fireproof, but failed to maintain a fireproof warehouse as warranted (paragraphs Third and Sixth of complaint). Under section 193-a of the Civil Practice Act the claim of the third-party plaintiff against the third-party defendant need not rest upon the same cause of action or the same ground as the claim asserted against the third-party plaintiff,” This provision renders obsolete the case of Nichols v. Clark, MacMullen & Riley, Inc. (261 N. Y. 118) decided prior to the enactment of section 193-a (L. 1946, ch, 971).

Even if a recovery against the third-party plaintiff should be based upon a finding that the latter was negligent, it may well be that it is entitled to a recovery over against the third-party defendant on the theory that it is not in pari delicto with the latter because its negligence was passive and consisted merely of the failure to discover, whereas the negligence of the third-party defendant was the primary and efficient cause of the damage (see Iroquois Gas Corp. v. International By. Co., 240 App. Div. 432, 433). It is to be noted that the third-party complaint alleges that the third-party plaintiff did not know of or consent to the use of acetylene torches for the burning away of the re-enforcing rods, whereas the third-party defendant, who caused the work to be done, did know of the use of the torches and of the dangerous effects to be apprehended therefrom (paragraph Seventh, third-party complaint). Moreover, the third-party defendant may be liable over to the third-party plaintiff on the basis of the farmer’s breach of its duty as landlord of the third-party plaintiff to protect the latter against disturbance of its possession, a nondelegable duty (Paltey v. Egan, 200 N. Y. 83).

To the extent that the present motion seeks to dismiss the third-party complaint in the exercise of the court’s discretion, the motion is likewise denied. It appears that plaintiffs themselves have brought in the third-party defendant as a defendant to the action instituted by them. Since the third-party defendant is now a defendant to the plaintiffs’ action, the third-party plaintiff is entitled as a matter of right under section 264 of the Civil Practice Act to assert a cross claim against the third-party defendant. Put somewhat differently, the third-party defendant is no longer such. It is now merely a defendant to the original action. In the circumstances, no useful purpose can be served by dismissing the third-party complaint, for the third party plaintiff can immediately thereafter assert the same cause of action as a cross claim instead of as a third-party complaint.

The motion is denied in all respects, with leave to answer within ten days from the service of a copy of this order with notice of entry.  