Betor v. City of Albany

Appellate Division of the Supreme Court of New York

Betor v. City of Albany

193 A.D. 349, 184 N.Y.S. 44, 1920 N.Y. App. Div. LEXIS 5554

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

DecidedSeptember 8, 1920

StatusPublished

Cited by5 cases

This text of 193 A.D. 349 (Betor v. City of Albany) 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

Betor v. City of Albany, 193 A.D. 349, 184 N.Y.S. 44, 1920 N.Y. App. Div. LEXIS 5554 (N.Y. Ct. App. 1920).

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Opinions

John M. Kellogg, P. J.:

One O’Neill maintained a cellarway extending from the house line into the sidewalk, and a frame erection prevented pedestrians from falling into it from the side, or at one end; the other end apparently was open. It is claimed that the cellarway extending into the sidewalk was a nuisance and that the defendant is liable for the damages sustained by the plaintiff who, in using the sidewalk, fell into the cellarway. The answer alleges that the plaintiff had brought an action against O’Neill for the same injury, and had been defeated upon the merits, and that if the city was liable O’Neill would be liable over to it and, therefore, that the O’Neill judgment constituted a defense.

I think the order is appealable. A judgment of the County Court, to be appealable, must be final. (Code Civ. Proc. § 1340.) And clearly an interlocutory judgment is not a final [351]*351judgment and, therefore, is not appealable. (Henn v. City of Mount Vernon, 190 App. Div. 533.) The question here does not relate to a judgment but to an order. The plaintiff brought the demurrer on for trial as a contested motion, and the result of the motion is an order and not a judgment. (National Park Bank v. Billings, 144 App. Div. 536; affd., 203 N. Y. 556.) The order contemplates no judgment upon it, but is a final determination that the alleged defense is without force. It, therefore, affects a substantial right. (See Code Civ. Proc. § 1342.)

It is not claimed that the city created the nuisance. It resulted from the acts of O’Neill, and any liability of this defendant is in permitting it to remain. The fault of O’Neill was the cause of the accident. The city was liable for permitting O’Neill’s wrong to continue. Therefore, O’Neill would be liable over to the city, and the judgment in his favor frees the city from liability, as it cannot be liable if he is not. (Featherston v. N. & C. Turnpike, 71 Hun, 109; City of New York v. Hearst, 142 App. Div. 343; affd., 221 N. Y. 671; Pangburn v. Buick Motor Co., 211 id. 228.) I, therefore, favor a reversal.

All concur, except Woodward, J., who votes to dismiss the appeal, with an opinion.

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John M. Kellogg, P. J.:

One O’Neill maintained a cellarway extending from the house line into the sidewalk, and a frame erection prevented pedestrians from falling into it from the side, or at one end; the other end apparently was open. It is claimed that the cellarway extending into the sidewalk was a nuisance and that the defendant is liable for the damages sustained by the plaintiff who, in using the sidewalk, fell into the cellarway. The answer alleges that the plaintiff had brought an action against O’Neill for the same injury, and had been defeated upon the merits, and that if the city was liable O’Neill would be liable over to it and, therefore, that the O’Neill judgment constituted a defense.

I think the order is appealable. A judgment of the County Court, to be appealable, must be final. (Code Civ. Proc. § 1340.) And clearly an interlocutory judgment is not a final [351]*351judgment and, therefore, is not appealable. (Henn v. City of Mount Vernon, 190 App. Div. 533.) The question here does not relate to a judgment but to an order. The plaintiff brought the demurrer on for trial as a contested motion, and the result of the motion is an order and not a judgment. (National Park Bank v. Billings, 144 App. Div. 536; affd., 203 N. Y. 556.) The order contemplates no judgment upon it, but is a final determination that the alleged defense is without force. It, therefore, affects a substantial right. (See Code Civ. Proc. § 1342.)

It is not claimed that the city created the nuisance. It resulted from the acts of O’Neill, and any liability of this defendant is in permitting it to remain. The fault of O’Neill was the cause of the accident. The city was liable for permitting O’Neill’s wrong to continue. Therefore, O’Neill would be liable over to the city, and the judgment in his favor frees the city from liability, as it cannot be liable if he is not. (Featherston v. N. & C. Turnpike, 71 Hun, 109; City of New York v. Hearst, 142 App. Div. 343; affd., 221 N. Y. 671; Pangburn v. Buick Motor Co., 211 id. 228.) I, therefore, favor a reversal.

All concur, except Woodward, J., who votes to dismiss the appeal, with an opinion.

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Bluebook (online)

193 A.D. 349, 184 N.Y.S. 44, 1920 N.Y. App. Div. LEXIS 5554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/betor-v-city-of-albany-nyappdiv-1920.

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