Order modified, insofar as appealed from, with $10 costs and disbursements against respondent Lipton, by striking the fourth ordering paragraph and substituting therefor a provision that the cross motion is granted.
The third-party defendant had disclaimed liability as to the defendant third-party plaintiff driver. In our opinion, a trial of all causes of action before the same jury would subject the third-party defendant to some prejudice (Kelly v. Yannotti
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