to know what the proof of the plaintiff in the primary action will establish. Employers Mut. Lia. Ins. of Wis. V. Fairchild Press, Inc., 279 App. Div. 895, motion for leave to appeal denied, 279 App. Div. 1045. This is particularly true where, as in the case at bar, the complaint in the primary action also charges the third-party plaintiff with negligence in wholly unspecified respects (51). THIRD POINT The denial of the motion to compel Fordham to serve an amended third-party complaint, separately stating and numbering its causes of action for common-law and contract indemnity, involved no abuse of judicial discretion. At the outset, it will be observed that this motion was not made until a year and a half after the third-party complaint had been served (64-65). On this ground alone, it is submitted that the same should have been denied. Although there is a technical distinction between a cause of action for judgment over on the theory of common-law indemnity and one for judgment over on the theory of statutory indemnity, as this Court knows, it is not an uncommon practice for third-party plaintiffs to seek indemnity on both of these theories under a single cause of action. The danger of prejudice to the third-party defendant is remote indeed. As the Special Term pointed out in its opinion the "real reason” for the motion in this case was, not possible prejudice to the third-party defendant, but rather the convenience of its insurance carrier. In denying the motion, the Special Term stated (83): “The third-party complaint as now constituted presents no difficulty to answering with clarity and certainty. However, the real reason for this application would appear to be stated in the memorandum of law (p. 8) submitted in support of the motion by the attorney for the third-party defendant (whose office represents the latter's insurance carrier) that 'the third-party complaint, in its present form, does not permit a withdrawal by the carrier from this action.'” The Special Term then went on to say (83-84): “Thus it is clear that this motion is made for the benefit, not of the party, but of the insurance carrier. A motion to separately state and number a pleading is addressed to the sound discretion of the court and may be denied where no useful purpose is served by its granting and its denial will result in no prejudice to the moving party (O'Hara v. Derschug, 232 App. Div. 31; Crawford Music Corp'n v. Am. Record Corp'n, 173 Misc. 205, aff'd 258 App. Div. 955; Greenberg v. Greenberg, 95 N.Y.S. 2d 676; 4 Carmody-Wait, 727, 728). Under all the circumstances disclosed herein, the court will, in its discretion, deny the motion." The burden of the argument on the present appeal is still that the causes of action should be separately stated and numbered, not for the benefit of the third-party defendant, but for the con venience of its insurance carrier which would like to "withdraw” from the case (App.'s Br., p. 15). It is new doctrine if insurance carriers, under the guise of defending actions for their assureds, are entitled to invoke the aid of courts to the end that they may be in a better position to disclaim liability for the defense of the action. From the foregoing, it is abundantly clear that, instead of “abusing” the judicial discretion reposed in it, as now claimed by the appellant, the learned Special Term exercised such discretion in an eminently sound judicial manner. CONCLUSION The orders appealed from should be affirmed, with costs. Dated: New York, New York, October 6, 1958. Respectfully submitted, HAMPTON & DIETEL, Attorneys for Third-Party Plaintiff-Respondent. WILLIAM F. McNULTY, Of Counsel. 7 AD 2ND713 > 930 BREITEL New York County Clerk's Index No. 13.086. (1958) New York Supreme Court APPELLATE DIVISION - FIRST DEPARTMENT nor NOV 19 1958 THE HANOVER BANK, as Trustee under an Agreement made by Tessie A. Cohn and James A. Cole dated April 28, 1931, Petitioner, - against BOTEIN, P. Ja BREITEL JAMES A. COLE, ELEANOR S. COLE, PAMELA COLE, MONROE PERCY Bloch and JAMES A. COLE, as Executor of Last Respondents. RABIN VALENTE MCNALLY RECORD ON CONTROVERSY SUBMITTED UNDER PRACTICE ACT JJ BRUSH & BLOCH, 27 William Street, HA 2-0150 HESS MELA SEGALL POPKIN & GUTERMAN, 415 Madison Avenue, PL 1-0022 S-L |