The opinion
Benjamin, J. (dissenting).
I am of the opinion that a trial is required in order to determine liability as between Glalin and Krugman. It is unnecessary for us to resolve the issue whether the language of section 193-a of the former Civil Practice Act was-mandatory insofar as it referred to the service of an answer to a third-party complaint. In addition to the legal *126 questions raised therein, Krugman’s motion was addressed to the court’s discretion. I believe the court exercised its discretion in a provident manner when it granted the motion in order not to deprive a party of its day in court, based upon the application of a concededly ambiguous statute. Our reversal predicated upon a legal interpretation of the statute involved would, therefore, seem to be in disregard of the exercise of discretion by the court below.
Christ, Acting P. J., Hopkins and Munder, JJ., concur with Brennan, J.; Benjamin, J., dissents in separate opinion.
Order of the Supreme Court, Kings County, dated October 13, 1966 [ 51 Misc 2d 1019 ], modified on the law and the facts by striking out all its ordering paragraphs except the second and sixth, and by substituting therefor provisions granting the motion by the third-party plaintiff for judgment over on its third-party complaint against the third-party defendant and confirming that part of the judgment, dated'May 13,1966, which is in favor of the third-party plaintiff against the third-party defendant. As so modified, order affirmed, insofar as appealed from, with $10 costs and disbursements to the third-party plaintiff.