Wolf v. V. La Rosa & Sons, Inc. 298 N.Y. 597

Judgment affirmed, with costs; no opinion.

Concur: LotjghraN, Ch. J., Lewis, CoNWAy and Thacjher, JJ. Dye, J., dissents in the following memorandum, in which DesmoNd and Funn, JJ., concur.

Dye, J.

(dissenting). I dissent. The purpose of section 193-a was to facilitate interpleader practice so that claims related by questions of law and fact to both controversies would be disposed of at one trial, thus providing a simplified procedure without in any way changing the basic law of liability, the test of which is found in the phrase “ who is or may be liable ”. It is said this proceeding must fall as liability over is not established by reason of law for the answer in effect is alleging non-liability for negligence and the contract clause is not expressed in such unequivocal terms as to amount to an indemnity. The liability for tort was anticipated by the contract and when in its performance a person was injured, the one responsible should be called upon to excuse his act or be liable for its consequences'. It may be that the relationship of joint tort-feasor exists and affords a good excuse for nonjoinder by way of interpleader but this should not. operate as a bar to inter-pleader for liability over, which here depends upon the intention of the parties as gathered from the terms of the contract. In a motion of this sort directed to the sufficiency of pleading the allegations thereof must be accorded every reasonable inference. If we do so here, then the question exists as “ who is or may be ” liable and this being so, it is proper within the fair meaning of section 193-a, to interplead the third party so that all issues between them may be disposed of in one trial.