Aesman v. Fox

Appellate Division of the Supreme Court of New York

Aesman v. Fox

26 A.D.2d 739, 272 N.Y.S.2d 94, 1966 N.Y. App. Div. LEXIS 3553

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

DecidedJuly 18, 1966

StatusPublished

This text of 26 A.D.2d 739 (Aesman v. Fox) 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

Aesman v. Fox, 26 A.D.2d 739, 272 N.Y.S.2d 94, 1966 N.Y. App. Div. LEXIS 3553 (N.Y. Ct. App. 1966).

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Opinion

Reynolds, J.

Appeal from an order [740]*740of the Supreme Court, Albany County, denying motions to dismiss the respondents’ complaints for failure to prove causes of action (CPLR 4401) or alternatively to direct judgments in favor of the appellants (CPLR 3212). The appeal from so much of the order as denied the motion to dismiss pursuant to CPLR 4401 must be dismissed in the instant case since no appeal lies therefrom under CPLR 5701 (Covell v. H. R. H. Constr. Corp., 24 A D 2d 566, affd. 17 N Y 2d 709). Furthermore, since there must in any event be a new trial as to the other appellants, there should, in the interests of justice, be a new trial as to appellant Fox also, albeit on the present record there is doubt as to any liability on her part (see St. Denis v. Skidmore, 14 A D 2d 981, affd. 12 N Y 2d 901; 4 N. Y. Jur., Automobiles, § 406; cf. Paone v. Magee, 18 A D 2d 728; Burns v. Wheeler, 17 A D 2d 173). Appeal from that part of the order which denies appellants’ motion to dismiss the complaints pursuant to CPLR 4401 dismissed; and that part of the order which denies summary judgment affirmed, without costs. Gibson, P. J., Herlihy, Aulisi and Staley, Jr., JJ., concur.

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Reynolds, J.

Appeal from an order [740]*740of the Supreme Court, Albany County, denying motions to dismiss the respondents’ complaints for failure to prove causes of action (CPLR 4401) or alternatively to direct judgments in favor of the appellants (CPLR 3212). The appeal from so much of the order as denied the motion to dismiss pursuant to CPLR 4401 must be dismissed in the instant case since no appeal lies therefrom under CPLR 5701 (Covell v. H. R. H. Constr. Corp., 24 A D 2d 566, affd. 17 N Y 2d 709). Furthermore, since there must in any event be a new trial as to the other appellants, there should, in the interests of justice, be a new trial as to appellant Fox also, albeit on the present record there is doubt as to any liability on her part (see St. Denis v. Skidmore, 14 A D 2d 981, affd. 12 N Y 2d 901; 4 N. Y. Jur., Automobiles, § 406; cf. Paone v. Magee, 18 A D 2d 728; Burns v. Wheeler, 17 A D 2d 173). Appeal from that part of the order which denies appellants’ motion to dismiss the complaints pursuant to CPLR 4401 dismissed; and that part of the order which denies summary judgment affirmed, without costs. Gibson, P. J., Herlihy, Aulisi and Staley, Jr., JJ., concur.

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Bluebook (online)

26 A.D.2d 739, 272 N.Y.S.2d 94, 1966 N.Y. App. Div. LEXIS 3553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aesman-v-fox-nyappdiv-1966.

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