Abar v. Cooper

Appellate Division of the Supreme Court of New York

Abar v. Cooper

6 A.D.2d 682, 175 N.Y.S.2d 279, 1958 N.Y. App. Div. LEXIS 5717

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 1958

StatusPublished

This text of 6 A.D.2d 682 (Abar v. Cooper) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abar v. Cooper, 6 A.D.2d 682, 175 N.Y.S.2d 279, 1958 N.Y. App. Div. LEXIS 5717 (N.Y. Ct. App. 1958).

Pincite

Opinion

Order of Special Term dismissing the complaint is unanimously modified, in the exercise of discretion, to the extent of granting plaintiff leave to replead, and is otherwise affirmed with costs to plaintiff to abide the event. It is conceded that the plaintiff has capacity to sue. He should allege, however, either exhaustion of administrative remedies or the futility of such action. Moreover, it would appear that all parties upon whom a judgment would be binding should be joined, and this suggests the pro[683]*683priety of adding as parties the Union and members of the class benefited by the pension fund, at least in some representative capacity. Settle order. Concur — Breitel, J. P., Rabin, McNally, Stevens and Bergan, JJ.

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Order of Special Term dismissing the complaint is unanimously modified, in the exercise of discretion, to the extent of granting plaintiff leave to replead, and is otherwise affirmed with costs to plaintiff to abide the event. It is conceded that the plaintiff has capacity to sue. He should allege, however, either exhaustion of administrative remedies or the futility of such action. Moreover, it would appear that all parties upon whom a judgment would be binding should be joined, and this suggests the pro[683]*683priety of adding as parties the Union and members of the class benefited by the pension fund, at least in some representative capacity. Settle order. Concur — Breitel, J. P., Rabin, McNally, Stevens and Bergan, JJ.

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Bluebook (online)

6 A.D.2d 682, 175 N.Y.S.2d 279, 1958 N.Y. App. Div. LEXIS 5717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abar-v-cooper-nyappdiv-1958.