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COLONIAL SAND & STONE CO. v. THOMAS J. HUGHES CONSTRUCTION CO. (07/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


*fn*: July 21, 1969.

COLONIAL SAND & STONE CO., INC., RESPONDENT,
v.
THOMAS J. HUGHES CONSTRUCTION CO., INC., ET AL., RESPONDENTS, AND PIOUS SOCIETY OF SAINT PAUL, INC., ET AL., APPELLANTS, ET AL., DEFENDANTS

Appeal from an order of the Supreme Court, Richmond County, dated March 5, 1969, which denied a motion by appellants (1) to dismiss plaintiff's second amended complaint, under CPLR 3211 (subd. [a], par. 10) and section 44 of the Lien Law, or, (2) in the alternative, to stay all proceedings in the action, under CPLR 2201 and 3103; the ground of the motion was that plaintiff failed to bring in, as a necessary party to the action, Thomas J. Hughes Construction Co., Inc., which was named in the title of the action as a defendant.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Kleinfeld, JJ., concur.

At the trial of this action, if Thomas J. Hughes Construction Co., Inc., by its trustee in bankruptcy, shall not have theretofore intervened or been impleaded as a party defendant to the first cause of action alleged in the complaint, the Trial Justice can decide whether that cause of action shall proceed to judgment without said Hughes corporation or make such other order or judgment as to that cause of action as the Trial Justice may deem appropriate (Blumenthal v. Allen, 46 Misc. 2d 688, 691; CPLR 1001 [subd. (b)]). As to the second and third causes of action alleged in the complaint, said corporation is not a necessary party. If by the time of the trial, this corporation, by its trustee in bankruptcy, shall not have been made a party to this action, plaintiff of course will be unable to proceed with its fourth cause of action, which action is asserted only against said corporation.

Disposition

Order affirmed, with $10 costs and disbursements to plaintiff.


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