
    Roxy Theatre, Inc., Respondent, v. Queensboro Farm Products, Inc., Appellant-Respondent, and Meridale Dairies, Inc., Impleaded Defendant, Appellant.
    Supreme Court, Appellate Term, First Department,
    July 16, 1943.
    
      
      William L. Shumate for Queensboro Farm Products, Inc., appellant-respondent.
    
      Carl Albert and Leo M. Brimmer for Meridale Dairies, Inc., appellant.
    
      Norman B. Steinberg for respondent.
   Memorandum Per Curiam.

Upon the fact's in this case the finding of the Trial Judge that the defendant Queensboro was negligent is inconsistent with the judgment over against Meridale indemnifying Queensboro.

While plaintiff could have sued both defendants, it would seem the court had no power on the motion of Queensboro to implead defendant Meridale in this tort action. (Fox v. Western New York Motor Lines, Inc., 251 N. Y. 305.)

On the appeal of defendant Queensboro judgment reversed and a new trial ordered, with thirty dollars costs to abide the event.

On the appeal of defendant Meridale judgment reversed and cross complaint dismissed, without prejudice to an appropriate application by plaintiff to join Meridale as a codefendant.

Hammer, Shientag and Hecht, JJ., concur.  