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Where two causes of action are set forth in a complaint, they should be separately stated and numbered in order that the defendants may intelligently prepare for trial or make any motions with respect thereto. Heaphy v. Eidlitz, 197 App. Div. 455. Moreover, if the theories of liability pleaded by the third-party plaintiff in its complaint have different defenses, the causes of action must be separately stated and numbered. Glover v. Holbrook, supra.

If the present form of the third-party complaint does not permit the third-party defendant to avail itself of the different pleadings or motions with respect thereto, or intelligently prepare for trial, the application under Rule 90 must be granted.

In the case at bar, the third-party plaintiff states in one cause of action two different theories of liability upon which it requests recovery against the third-party defendant. One theory of liability is based on negligence and the other theory of liability is based on an indemnification agreement contained in a written contract between the parties. The two theories of liability are included in paragraph marked “9” of the third-party complaint (41-45).

It is readily apparent from the foregoing that the allegation of common law negligence is not related to the allegation based upon the indemnification agreement between the parties. Where, as in the instant case, one cause of action is based on negligence and the other cause of action is based on contract, they should be separately stated and numbered. (Lavigne v. St. Lawrence County Savings Bank, 282 App. Div. 978; Scalzo v. Vincent, 279 App. Div. 1141.)

In Heaphy v. Eidlitz, supra, the Court stated: “As there are two causes of action set forth they should be separately stated and numbered, that the defendants may plead or move as they may be advised with regard to each. The Court at Special Term held that the defendants could easily deny both. But the defendants may have defenses to one that they have not to the other, or may have other relief as to one which would not be applicable to the other. In the present form of the complaint, the defendants cannot avail themselves of these different pleadings or motions."

In the instant case, there is an insurance carrier for the third-party defendant, whose sole obligation under its insurance policy is to defend it for actions based on negligence and not for actions based on contract. The lower court denied the motion on the basis that the insurance company's ability to withdraw from the above action would serve no useful purpose and its denial would result in no prejudice to the moving party (8384).

It is clear that the third-party complaint in its present form does not permit a withdrawal by the insurance company from this action even though the third-party defendant is not liable to the third-party plaintiff on any theory of common law negligence. It is respectfully submitted that the insurance company representing Donato and Donato itself are unable to intelligently prepare for trial if the third-party complaint remains in its present form; and that a useful purpose would be served by having this motion granted; and that the denial of this motion results in prejudice to both the insurance carrier and Donato.

The inherent possibilities of confusion and future litigation between the insurance carrier and Donato reveal the necessity of granting this motion. The ability of the carrier to withdraw from this action would enable Donato to properly prepare the defense of this action concerning the cause of action based on the written indemnification agreement. The denial of this motion results in the insurance carrier's continuing the defense in this action and would prejudice its rights to disclaim under the insurance policy. See O'Dowd v. American Sur. Co. of New York, 3 N. Y. 2d 347.

Thus, the lower court erred when it stated that no useful purpose would result from the granting of this motion and the denial would result in no prejudice. The lower court abused its discretion in denying this motion and this Court should require the third-party plaintiff to amend its complaint in order to separately state and number each cause of action.

CONCLUSION The third-party complaint should be dismissed as it does not state a cause of action either on the ground of the common law right of indemnification or on the basis of a written indemnification. However, if the third-party complaint is sustained, the third-party plaintiff should be required to amend its complaint to separately state and number each cause of action.

Respectfully submitted,

BERNARD HELFENSTEIN

Attorney for Third-Party Defendant SANFORD SAIDEMAN, Esq.

Of Counsel

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FORDHAM HOISTING EQUIPMENT COMPANY and
ALBERT SMITH,

Defendants.

FORDHAM HOISTING EQUIPMENT COMPANY,

Third-Party Plaintiff-Respondent,

against

DONATO & GAGLIANO, INC.,

Third-Party Defendant-Appellant.

BRIEF FOR THIRD-PARTY PLAINTIFF

RESPONDENT

Statement

The present appeal involves only the thirdparty complaint of the third-party plaintiff Fordham Hoisting Equipment Company, herein

after called “Fordham”, against the third-party defendant Donato & Gagliano, Inc., hereinafter called “Donato.”

Donato appeals from two orders made and entered at the Bronx County Special Term, to

wit:

1. An order, made by Hon. Morris E. Spector

on December 18, 1957, denying its motion to dismiss said third-party complaint pursuant Rule 106 of the Rules of Civil Prac

tice (13-15, 73-81) and 2. An order, made by Hon. Sidney A. Fine

on March 31, 1958, denying its motion to compel the service of an amended thirdparty complaint separately stating and numbering the common law and contract indemnity causes of action pleaded therein, pursuant to Rule 90 of the Rules of Civil Practice (22-24, 82-84).

The Pleadings

The plaintiff, Anthony Bernardo, was injured on June 5, 1956, while attempting to repair a bucket-type hoist owned by Fordham and leased to Donato, a contractor engaged in the alteration or construction of a building at 239th Street and Van Cortlandt Park South, in the Borough of Bronx (36, 48-51).

The complaint in the primary action alleges that said injury was caused by the negligence of Fordham (1) in leasing to Donato a hoist which was “in a defective and dangerous condition prior to the rental thereof” (49-50); (2) in allegedly employing a man (i.e., the defendant Smith) to operate said hoist who, to the knowl

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