(dissenting). I would affirm. Very definitely, on the face of the complaint, the cause pleaded is one for indemnification in the event that in the future there is a recovery against the plaintiff in the pending action brought against it on behalf of the injured infant, but, as appears from the complaint, a cause for indemnification has not yet accrued. As an action based on such a cause, it is premature and not maintainable. (See Corbetta Constr. Co. v. Driscoll Co., 17 A D 2d 176, 180; City of Rochester v. Campbell, 123 N. Y. 405, 413; Satta v. City of New York, 272 App. Div. 782; Van Schaick v. Burney, 145 Misc. 887. 888, affd. 237 App. Div. 812.)
The mandate under the Civil Practice Law and Rules for liberal construction of pleadings and the provisions therein authorizing the statement of causes of action hypothetically cannot save this complaint. (CPLR, rule 3014.) Even on the basis of a most liberal construction, the complaint may not be sustained as one stating a cause of action for a presently existing breach of warranty. The complaint was not framed for this purpose; and, in any event, there is no proper allegation of such a breach nor is there any proper allegation of damage flowing from such a breach.
Nor may the complaint be sustained as within the permissible area of hypothetical pleading. Rather than the proper example of the hypothetical pleading of a presently existing cause, the claim pleaded here is made dependent upon a future event which may or may not happen. To allow an action to be instituted upon such a claim runs counter to the fundamental principles barring actions upon unmatured claims. (See 1 C. J. S., Actions, § 127.) There are statutory exceptions authorizing hypothetical cross claims and third-party claims in a properly maintainable action (see CPLR, §§ 1007, 3019, subd. [b]) but I know of no statute providing for an independent action on an unmatured claim over. Furthermore, an independent action based on such a claim would be required to be held in abeyance and, thus, is at variance with our statutes and rules providing for the expeditious and orderly processing of actions for trial and disposal.
*365Bbeitel, J. P., McNally, Stevens and Steueb, JJ., concur in Per Curiam opinion; Eageb, J., dissents in opinion.
Order and judgment reversed, upon the law, the facts and in the exercise of discretion, with costs to appellant, and the motion to dismiss the complaint denied.