Opinion
December 13, 1965
In a negligence action, in which the defendants Albert Ginsberg and Irving R. Raber Co., Inc., asserted separate cross claims against the defendant Knudson Elevator Service Co., Inc. (former Civ. Prac. Act, § 264) and in which, during the trial, the plaintiff settled and discontinued his action as against said defendants Ginsberg and the Raber corporation and discontinued his action as against the defendant Knudson corporation, the said cross claimants appeal from an order of the Supreme Court, Kings County, entered March 18, 1965, which denied their subsequent motion at Special Term to restore their cross claims to the Trial Term, Part I, Calendar for trial, without prejudice to the rights of the parties, if so advised, to commence a plenary action. Order reversed, with one bill of $10 costs and disbursements; cross claims severed; and motion granted on condition that within 30 days after entry of the order hereon, appellants serve an amended pleading which shall reflect the factually changed nature of their cross claims against respondent in view of their mid trial settlement with plaintiff, with leave to the respondent, within 30 days thereafter, if it be so advised, to answer or move with respect thereto. (See Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214; Venneri Co. v. Central Heating Co., 40 Misc.2d 125. ) Beldock, P.J., Ughetta, Christ, Hill and Hopkins, JJ., concur.