American Mutual Liability Insurance v. Niagara Mohawk Power Corp.

28 A.D.2d 1199, 284 N.Y.S.2d 738, 1967 N.Y. App. Div. LEXIS 2937

Opinion

Herlihy, J. P.

Herlihy, J. P., Aulisi and Gabrielli, JJ., concur in memorandum by Herlihy, J. P.; Reynolds, J., concurs in a separate memorandum, in which Staley, Jr., J., concurs. Reynolds, J., (concurring). We agree with the result only for the same reason given by the majority that we feel bound by Juba v. General Bldrs. Supply Corp. (7 N Y 2d 48) but it is obvious that an injustice is being done here reading the statute as a whole and we do not think the Legislature ever intended such a, construction of the statute which would allow a negligent third party to escape as under the present facts. But if the respondent is to have relief it must be in the Court of Appeals. [51 Misc 2d 940.]