Per Curiam.
The complaint in this action alleges that the plaintiff was operating his automobile in a southerly direction along Route 57 from the city of Fulton and that the defendant was operating his automobile in a westerly direction on a highway which intersected Route 57 and "caused his automobile to enter Route 57 without slowing or stopping and which caused a certain automobile which was owned and/or operated by" [the third-party defendant] "proceeding northerly, to swerve across the highway and run into and collide with plaintiff's automobile". It further alleged that defendant was operating his motor vehicle at a high rate of speed, without keeping a proper lookout and without slowing the vehicle upon approaching or bringing it to a stop before entering Route 57.
The third-party complaint alleges that the plaintiff was operating his car southerly on Route 57 when it was struck by an automobile owned and operated by the third-party defendant; that the plaintiff brought this action against the third-party plaintiff and that the collision between plaintiff's and third-party defendant's cars was caused solely by the negligence of the third-party defendant and asks for recovery over of any sum which may be recovered by the plaintiff against him, the defendant and third-party plaintiff.
It is clear that if the defendant's contention of how the accident happened as alleged in the third-party complaint is believed by the jury the plaintiff cannot recover against him. If the jury believes that both the defendant and third-party defendant were in some degree negligent then the defendant (third-party plaintiff) and third-party defendant are joint tort-feasors in which event the third-party action must be dismissed. ( Fox v. Western N.Y. Motor Lines, 257 N.Y. 305; Middleton v. City of New York, 276 App. Div. 780, affd. 300 N.Y. 732; Sannit v. Buffalo Wire Works, 278 App. Div. 632, affd. 302 N.Y. 820; Wenleder v. Marine Trust Co., 277 App. Div. 941; Sadowski v. Colorado Fuel Iron Corp., 277 App. Div. 943; Desimone v. Burgess Co., 278 App. Div. 751; Bornhorst v. Lyon, 279 App. Div. 820. )
The order should be affirmed, with $10 costs and disbursements.
All concur. Present: TAYLOR, P.J., VAUGHAN, KIMBALL, PIPER and WHEELER, JJ.
Order affirmed, with $10 costs and disbursements.