Hopps v. Claude Neon, Inc. ( 1952 )

Peck, P. J.

(dissenting). I think it is not necessary to pass upon the debatable question presented on this appeal as to whether a cause of action by way of counterclaim could be maintained by the defendant against plaintiff Hopps arising out of his dual relationship with defendant and its subsidiary Pioneer Equitable Insurance Company. Defendant has stated in open court that it would join Pioneer as a party in this action if that company were made available to the jurisdiction of the court. The attorney for plaintiffs undertook to make Pioneer available. Pioneer thus can and should be brought into the action and the counterclaim can and should be asserted in its name. No question would then remain or need be decided respecting any rights which defendant might have in the absence of Pioneer. I would, therefore dismiss the appeal as academic. [See post, p. 678.]

Van Yoorhis and Bbeitel, JJ., concur with Callahan, J.; Peck, P. J., dissents and votes to dismiss the appeal as academic, in opinion.

Order, so far as appealed from, modified by denying the motion to dismiss the first counterclaim as to the plaintiff Hopps and, as so modified, affirmed without costs.