
    Massey Concrete Products Company, Appellant, v. William Powell, Defendant and Third-Party Plaintiff-Respondent. Great Eastern Fuel Co., Inc., Third-Party Defendant-Respondent.
   Action to recover for goods sold and delivered, in which the defendant-respondent, the contract debtor, makes no defense to appellant’s demand but by a third-party complaint brings in Great Eastern Fuel Co., Inc., which, in its third-party answer, seeks to offset appellant’s demand by an asserted claim in negligence. The appeal is from an order denying appellant’s motion to strike out the answer and for summary judgment pursuant to rules 112 and 113 of the Rules of Civil Practice. Order modified by striking from the ordering paragraph “in all respect[s] denied ” and by substituting therefor a provision that the motion for summary judgment striking out the answer be granted pursuant to rule 113 of the Rules of Civil Practice, and that in all other respects the motion be denied. As so modified, order affirmed, with $10 costs and disbursements to appellant payable by both respondents, and third-party action dismissed. The record discloses that Great Eastern, the third-party defendant, is not attempting to assert a defense which Powell, the third-party plaintiff, had against the claim of Massey Concrete Products Company, the plaintiff in the main action. Such counterclaim could not be interposed since Massey has made no claim against Great Eastern (Feldstein v. Berner, 278 App. Div. 828). Nolan, P. J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.  