GOLDNER v. WIENER


36 Misc.2d 741 (1956)

Elsie Goldner et al., Plaintiffs, v. Sadie Wiener, Defendant and Third-Party Plaintiff. Village of Liberty, New York, Third-Party Defendant.

Supreme Court, Special Term, Sullivan County.

November 12, 1956


Attorney(s) appearing for the Case

Sidney Appelbaum for plaintiffs. Lavery, Lauterbach & Babchak for defendant and third-party plaintiff. Harold Sussman for third-party defendant.


ISADORE BOOKSTEIN, J.

If the contention of the third-party plaintiff is correct, there can be no recovery against her in the primary action. Hence there is no justification for the third-party complaint. In such event, the complaint in the primary action would have to be dismissed. In other words, if the primary action is based upon a defective sidewalk, without any element of special use, there can be no recovery...

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