I dissent and would affirm on the categorical language of Ross v. Pawtucket Mut. Ins. Co. (13 N Y 2d 233, 235) wherein it was held that where an insurer has not made any payments under a policy ‘1 it has not acquired the right or color of a present cause of action ” in subrogation. In this case the insurer has not only not paid but contests liability. Its third-party action is premature.
If there were justification for a refusal to dismiss the third-party complaint, thus reaching the question of a stay, anything less than an absolute stay, until further order of the court, would be meaningless and not afford the plaintiff in the primary action and the third-party defendant the protection to which they are entitled. The issues between plaintiff in the primary action and the insurance company revolve around the bond issued by the latter. The insured purchased insurance against losses embraced in the bond, and such insurance never envisaged any delay in payment occasioned by endless litigation in which it had and has no direct concern. The issues raised by the insurer, defendant in the primary action, against the third-party defendant are completely tangential to the primary action. They have no bearing upon and do not affect the responsibility of the insurer to the insured. The attempt to interlock the myriad and complex issues raised in the third-party action with the essentially simple and legally unrelated issues of the primary action, to the prejudice of the plaintiff Krause and American Express, should not be countenanced.
Stevens and Tilzeb, JJ., concur with Steueb, J.; McGtvebn, J., dissents in opinion, in which Botein, P. J., concurs.
Orders entered on December 1, 1966, reversed, on the law, without costs or disbursements, and the motions to dismiss the third-party complaint denied and the third-party complaint rein*358stated; the motions, insofar as a stay is requested, are denied without prejudice to an application to sever the third-party action in the event the trial or any proceeding therein is sought to be delayed or adjourned because of the pendency or incompleteness of any proceeding in the third-party action.