Bresnihan v. United States Trust Co.

257 A.D. 195, 12 N.Y.S.2d 495, 1939 N.Y. App. Div. LEXIS 7705

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1939
• Status: Published

Opinion

Per Curiam.

We think that the motion to separately state and number the causes of action should have been granted, in order to permit the appellant to plead the Statute of Limitations as to the cause of action for nuisance.

Until the causes of action are separately pleaded, it may not be determined what Statute of Limitations is applicable to the claim of nuisance, (See Civ. Prac. Act, § 48, subd. 3; § 49, subd. 6; Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Hayes v. Brooklyn Heights R. R. Co., 200 id. 183; Niehaus v. Caryfield, Inc., 240 App. Div. 144.) Nor, until the new pleading is served, may it be determined whether the claim of nuisance presents an entirely different cause from the negligence first pleaded. (See Harriss v. Tams, 258 N. Y. 229; McConnell v. Caribbean Petroleum Co., 278 id. 189; McConnell v. Williams S. S. Co., Inc., 239 App. Div. 393; affd., 265 N. Y. 594.)

The order should be reversed, with twenty dollars costs and disbursements, and the motion granted.

Present — Martin, P. J., O’Malley, Glennon, Cohn and Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and the motion granted. Settle order on notice.