Bornhurst v. Massachusetts Bonding & Insurance

New York Supreme Court

Bornhurst v. Massachusetts Bonding & Insurance

31 Misc. 2d 339, 220 N.Y.S.2d 10, 1961 N.Y. Misc. LEXIS 2556

CourtNew York Supreme Court

DecidedJuly 25, 1961

StatusPublished

Cited by1 cases

This text of 31 Misc. 2d 339 (Bornhurst v. Massachusetts Bonding & Insurance) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bornhurst v. Massachusetts Bonding & Insurance, 31 Misc. 2d 339, 220 N.Y.S.2d 10, 1961 N.Y. Misc. LEXIS 2556 (N.Y. Super. Ct. 1961).

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Opinion

Henry A. Hudson, J.

The defendant has moved for summary judgment pursuant to rule 113 of the Rules of Civil Practice dismissing plaintiff’s complaint on the merits.

It seems to the court that the defendant has already moved in this same action for substantially the same relief and that such relief has been denied. In Bornhurst v. Massachusetts Bonding & Ins. Co. (12 Misc 2d 149) at page 150, the court stated: “ This is a motion to dismiss the complaint herein upon the ground that another action by the same plaintiff against the same defendant of the same character upon the same subject matter and for the same relief was then and still is pending in Supreme Court and that another action between the same parties was dismissed, and that there is no statutory authority for the present action.” The defendant’s motion was granted and the complaint dismissed (Bornhurst v. Massachusetts Bonding & Ins. Co., 12 Misc 2d 149, supra) but upon appeal, the judgment was reversed and the motion denied (11 A D 2d 632).

This has been an extended litigation and all of the facts and circumstances in respect thereto have been fully set forth in the decisions in Bornhurst v. Massachusetts Bonding & Ins. Co. (supra) and there is no necessity for my reviewing them in this opinion.

It is urged by the defendant on this motion, which appears to be addressed to exactly the same pleading, as the one considered in Bornhurst v. Massachusetts Bonding & Ins. Co. (12 Misc 2d 149, supra) that the Appellate Division was under the apprehension that the “ former action ” referred to (11 A D 2d 632), was the one previously brought against the defendant, Stearns. While I consider the decision of the Appellate Division in (11 A D 2d 632) determines that the cause of action set forth in [340]*340the complaint here under consideration may be maintained by the plaintiff, it would seem to me that such a misunderstanding, if such there be, would have been corrected upon the motion by the defendant to reargue or by the motion by the defendant for leave to appeal to the Court of Appeals, both of which motions were denied (11 A D 2d 907 [35]). In any event this court feels bound by the determination (11 A D 2d 632).

The motion is denied, with $10 costs.

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Henry A. Hudson, J.

The defendant has moved for summary judgment pursuant to rule 113 of the Rules of Civil Practice dismissing plaintiff’s complaint on the merits.

It seems to the court that the defendant has already moved in this same action for substantially the same relief and that such relief has been denied. In Bornhurst v. Massachusetts Bonding & Ins. Co. (12 Misc 2d 149) at page 150, the court stated: “ This is a motion to dismiss the complaint herein upon the ground that another action by the same plaintiff against the same defendant of the same character upon the same subject matter and for the same relief was then and still is pending in Supreme Court and that another action between the same parties was dismissed, and that there is no statutory authority for the present action.” The defendant’s motion was granted and the complaint dismissed (Bornhurst v. Massachusetts Bonding & Ins. Co., 12 Misc 2d 149, supra) but upon appeal, the judgment was reversed and the motion denied (11 A D 2d 632).

This has been an extended litigation and all of the facts and circumstances in respect thereto have been fully set forth in the decisions in Bornhurst v. Massachusetts Bonding & Ins. Co. (supra) and there is no necessity for my reviewing them in this opinion.

It is urged by the defendant on this motion, which appears to be addressed to exactly the same pleading, as the one considered in Bornhurst v. Massachusetts Bonding & Ins. Co. (12 Misc 2d 149, supra) that the Appellate Division was under the apprehension that the “ former action ” referred to (11 A D 2d 632), was the one previously brought against the defendant, Stearns. While I consider the decision of the Appellate Division in (11 A D 2d 632) determines that the cause of action set forth in [340]*340the complaint here under consideration may be maintained by the plaintiff, it would seem to me that such a misunderstanding, if such there be, would have been corrected upon the motion by the defendant to reargue or by the motion by the defendant for leave to appeal to the Court of Appeals, both of which motions were denied (11 A D 2d 907 [35]). In any event this court feels bound by the determination (11 A D 2d 632).

The motion is denied, with $10 costs.

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31 Misc. 2d 339, 220 N.Y.S.2d 10, 1961 N.Y. Misc. LEXIS 2556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bornhurst-v-massachusetts-bonding-insurance-nysupct-1961.

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