Opinion
December 13, 1962
Lucien Nemser for third-party defendant. Epstein Furman for plaintiff. Steingarten, Wedeen Weiss (Henry W. Steingarten and Gilbert H. Balter of counsel), for defendants and third-party plaintiffs.
This is a motion by the third-party defendant to dismiss the third-party complaint on the ground that it fails to state facts sufficient to constitute a cause of action.
The primary complaint, which must, of course, also be read on this motion ( Vaughan v. Globe Neon Sign Co., 10 A.D.2d (568), contains two identical causes of action. The first is asserted against the individual defendants, copartners doing business as Taffet Radio and Television Co., and the second is asserted against the corporate entity, Taffet Electronics, Inc., subsequently formed by them to carry on the business.
Under the primary complaint, plaintiff seeks to recover damages for breach of a written contract pursuant to which plaintiff was to buy and defendants to manufacture and sell a specified number of completely finished and assembled sets of such metal at an agreed unit price and plaintiff was to pay to defendants the sum of $22,500 for the manufacture of tooling which "was to become the sole property of plaintiff and could be removed by it form defend Taffet Radio's premises after the order was Completed". Not withstanding its due performance of the contract, alleges the plaintiff, said defendant "failed and refused to deliver said tooling to plaintiff or to make them available for removal by plaintiff form said defendants premises", a breach for which plaintiff seeks to recover damages in the sum of $50,000.
The operative paragraphs of the third-party complaint contain the following allegations:
"THIRD: That heretofore and in or about January, 1955, the Third-Party Plaintiffs herein ordered certain tooling form the Third-Party Defendant for use in connection with the performance by the Third-Party Plaintiffs of a contracted entered into by them with the Plaintiff herein.
"FOURTH: That it was understood and agreed that such tooling would remain upon the premises of the Third-Party Defendant, and would be delivered to the Plaintiff herein at the premises of the Third-Party Defendant located at Union City, New Jersey, upon completion of the contract.
"FIFTH: That Plaintiff herein claims that it has been improperly denied possession of such tooling, and has suffered damages by reason thereof, for which it seeks recovery from the Third-Party Plaintiffs herein, as alleged in the complaint."
The third-party plaintiffs content that the case of B.M.C. Mfg. Corp. v. Tarshis ( 278 App. Div. 266) requires a denial of this motion. In that case, defendants were to deliver to the plaintiff steel which was to be supplied to the defendants by a third party under an independent agreement. The third party failed to deliver the steel to defendants who thus failed to deliver it to the plaintiff and where sued for breach of contract. It was held that Special Term properly denied a motion to dismiss the third-party complaint. "A sufficient relationship between the controversies is shown", stated the appellate Division of Third Department, "where it is asserted that the acts of the lawsuit in which the third party could be required to answer the defendant for some of the loss threatened to be adjudicated" ( 278 App. Div. 266, 269).
But in that case the breach by the third-party defendant of its contract with the third-party plaintiffs was, or might possibly be held to be, the cause of the breach by the third-party plaintiffs of their contract with the plaintiff. In the instant case, the breach by the third-party defendant of its alleged agreement with the third-party plaintiffs that the tooling would remain upon the premises of the Third-Party Defendant and would be delivered to the Plaintiff herein at the premises of the Third-Party Defendant" (emphasis supplied) could not possibly be held to be the cause of the breach charged by the plaintiff to the third-party plaintiff Taffet Radio, i.e., its failure and refusal "to deliver said tooling to plaintiff or to make them available for removal by plaintiff from said defendant's premises" (emphasis supplied). In other words, neither performance nor breach by the third-party defendant of the agreement which the third-party plaintiffs have alleged against it can in any way affect the liability of the third-party plaintiffs to the plaintiff under the agreement which it has alleged against them. Under such circumstances, the conclusion seems inescapable that the third-party defendant is not one "who is or may be liable" to the third-party plaintiffs "for all or part of the plaintiff's claim against" them (Civ. Prac. Act, § 193-a, subd. 1).
Accordingly, the motion is granted with leave to the third-party plaintiffs, if so advised, to serve an amended third-party complaint within 10 days after service of a copy of the order to be entered hereon with notice of entry.