Corporations

Antonio Bizzarro, Respondent, v. Zimkot Realty Corporation, Appellant and Third-Party Plaintiff. Zimets Bed Spring Corp., Third-Party Defendant

283 A.D. 816·New York Supreme Court, Appellate Division·1954·NY

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Opinion

Antonio Bizzarro, Respondent, v. Zimkot Realty Corporation, Appellant and Third-Party Plaintiff. Zimets Bed Spring Corp., Third-Party Defendant. [MAJORITY] — In an action to recover damages for personal injuries, defendant appeals from an order insofar as it denied defendant’s motion to vacate or modify plaintiff’s notice to examine, before trial, the third-party defendant as a party. Order affirmed, with $10 costs and disbursements. Having elected to contest plaintiff’s claim, the third-party defendant is a party adverse to the plaintiff (Civ. Prac. Act, § 193-a, subd. 2) and may be examined before trial as such. Schmidt, Beldock and Murphy, JJ., concur; Nolan, P. J., and MaeCrate, J., dissent and vote to dismiss the appeal on the ground that appellant is not a party aggrieved. (Nixon v. Beacon Transp. Corp., 239 App. Div. 830.)