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CITY UTICA v. GOLD MEDAL PACKING CORP. (12/12/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


December 12, 1968

CITY OF UTICA, PLAINTIFF,
v.
GOLD MEDAL PACKING CORP., ET AL., DEFENDANTS IMPLEADED WITH WILLIAM A. SCHMITT, TRUSTEE OF GOLD MEDAL PACKING CORP., BANKRUPT, APPELLANT, AND CHICAGO DRESSED BEEF CO., INC., RESPONDENT. (NO. 3.)

Appeal from order of Oneida Special Term denying motion to serve amended answer.

Present -- Bastow, P. J., Goldman, Del Vecchio, Witmer and Henry, JJ.

Memorandum: Along with his defense to the action of Chicago Dressed Beef, Inc. (hereinafter "Chicago") to foreclose its mortgage against the Gold Medal Packing Corporation, the trustee in bankruptcy of said Corporation moved for leave to interpose a third-party complaint against Western Pork Packers, Inc. (hereinafter "Western"), to allege fraud charges against Western similar to those he has pending against Chicago and which had been referred to Trial Term for trial by order dated March 14, 1968, and entered March 18, 1968. The foreclosure action and the condemnation action (out of which the bankrupt's principal assets arise) have been consolidated. Since Western is a creditor in the bankruptcy proceeding, it was error to deny this motion. Accordingly, this part of the order should be reversed and the motion to interpose such pleading should be granted, with direction that the issues presented by answer thereto be joined for trial with the fraud issues against Chicago which have been referred for trial as above noted, and as so modified the order appealed from should be affirmed.

Disposition

Order unanimously modified to reverse insofar as it denies the motion of the trustee in bankruptcy to interpose a third-party complaint against Western Pork Packers, Inc., and motion granted with direction for further proceedings in accordance with the Memorandum herein and as so modified, order affirmed with costs.

19681212

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