Carl Gutmann & Co. v. Dan River Mills, Inc.

Appellate Division of the Supreme Court of New York

Carl Gutmann & Co. v. Dan River Mills, Inc.

30 A.D.2d 646, 291 N.Y.S.2d 78, 1968 N.Y. App. Div. LEXIS 3764

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

DecidedJune 11, 1968

StatusPublished

Cited by2 cases

This text of 30 A.D.2d 646 (Carl Gutmann & Co. v. Dan River Mills, Inc.) 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

Carl Gutmann & Co. v. Dan River Mills, Inc., 30 A.D.2d 646, 291 N.Y.S.2d 78, 1968 N.Y. App. Div. LEXIS 3764 (N.Y. Ct. App. 1968).

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Opinion

Order entered July 10, 1967, unanimously reversed, on the law and on the facts, without costs or disbursements to either party, and the motion to strike the affirmative defense of the Statute of Limitations is denied. The complaint contains allegations which sound either in indemnity or in breach of warranty, or in both. While the plaintiff indicates that the action is one merely for indemnity, that does not make it so. The allegations in the [647]*647complaint govern and, as indicated, under the complaint in this action, a recovery can conceivably be had in indemnity or breach of warranty. What form the action will take will, of necessity, depend on the proof ultimately submitted upon trial. If it be in the nature of breach of warranty, the defense of Statute of Limitations would be proper (see Liberty Mut. Ins. Co. v. Shiela-Lynn, Inc., 185 Misc. 689, affd. 270 App. Div. 835.) Therefore, the defense should not be stricken. The Trial Judge will then be free to rule in connection with that defense, depending on the proof submitted. Concur — Botein, P. J., Steuer, Capozzoli, MeGivern and Rabin, JJ.

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Order entered July 10, 1967, unanimously reversed, on the law and on the facts, without costs or disbursements to either party, and the motion to strike the affirmative defense of the Statute of Limitations is denied. The complaint contains allegations which sound either in indemnity or in breach of warranty, or in both. While the plaintiff indicates that the action is one merely for indemnity, that does not make it so. The allegations in the [647]*647complaint govern and, as indicated, under the complaint in this action, a recovery can conceivably be had in indemnity or breach of warranty. What form the action will take will, of necessity, depend on the proof ultimately submitted upon trial. If it be in the nature of breach of warranty, the defense of Statute of Limitations would be proper (see Liberty Mut. Ins. Co. v. Shiela-Lynn, Inc., 185 Misc. 689, affd. 270 App. Div. 835.) Therefore, the defense should not be stricken. The Trial Judge will then be free to rule in connection with that defense, depending on the proof submitted. Concur — Botein, P. J., Steuer, Capozzoli, MeGivern and Rabin, JJ.

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Bluebook (online)

30 A.D.2d 646, 291 N.Y.S.2d 78, 1968 N.Y. App. Div. LEXIS 3764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carl-gutmann-co-v-dan-river-mills-inc-nyappdiv-1968.

Opinion

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