Cord Meyer Development Co. v. Coakley & Booth, Inc.

Appellate Division of the Supreme Court of New York

Cord Meyer Development Co. v. Coakley & Booth, Inc.

25 A.D.2d 524, 267 N.Y.S.2d 548, 1966 N.Y. App. Div. LEXIS 5023

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

DecidedFebruary 7, 1966

StatusPublished

Cited by1 cases

This text of 25 A.D.2d 524 (Cord Meyer Development Co. v. Coakley & Booth, 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

Cord Meyer Development Co. v. Coakley & Booth, Inc., 25 A.D.2d 524, 267 N.Y.S.2d 548, 1966 N.Y. App. Div. LEXIS 5023 (N.Y. Ct. App. 1966).

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Opinion

In an action to recover damages for injury to property, defendant appeals from an order of the Supreme Court, Queens County, entered August 31, 1965, which denied its motion to vacate a preference theretofore granted to plaintiff by the Calendar Clerk of Trial Term, Part I, of said court under its rule VI. Order reversed, with $10 costs and disbursements, and motion granted. The complaint alleges: (1) that defendant, in the course of performing certain building construction work pursuant to an agreement with plaintiff, negligently drove three beams into a city sewer; (2) that plaintiff, in order to protect its property, undertook the repair of the sewer and (3) that plaintiff was free of contributory negligence. The complaint seeks recovery for injury to plaintiff’s property and for expenses incurred in effecting the repair of the sewer. In our opinion, plaintiff was not entitled to the preference, because the action is one to recover damages based on negligence (Mildener v. United Ind. Bank, 10 A D 2d 976; cf. Antoni Ravioli & Baking Co. v. Freeze Foods, 1 A D 2d 953). Although the negligence charged arose out of a commercial or business transaction, that adds nothing to plaintiff’s claim for a preference (Queens County Supreme Court Rules, rule VI, subds. [b], [e]).

Ughetta, Acting P. J., 'Christ, Brennan, Hill and Hopkins, JJ., concur.

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In an action to recover damages for injury to property, defendant appeals from an order of the Supreme Court, Queens County, entered August 31, 1965, which denied its motion to vacate a preference theretofore granted to plaintiff by the Calendar Clerk of Trial Term, Part I, of said court under its rule VI. Order reversed, with $10 costs and disbursements, and motion granted. The complaint alleges: (1) that defendant, in the course of performing certain building construction work pursuant to an agreement with plaintiff, negligently drove three beams into a city sewer; (2) that plaintiff, in order to protect its property, undertook the repair of the sewer and (3) that plaintiff was free of contributory negligence. The complaint seeks recovery for injury to plaintiff’s property and for expenses incurred in effecting the repair of the sewer. In our opinion, plaintiff was not entitled to the preference, because the action is one to recover damages based on negligence (Mildener v. United Ind. Bank, 10 A D 2d 976; cf. Antoni Ravioli & Baking Co. v. Freeze Foods, 1 A D 2d 953). Although the negligence charged arose out of a commercial or business transaction, that adds nothing to plaintiff’s claim for a preference (Queens County Supreme Court Rules, rule VI, subds. [b], [e]).

Ughetta, Acting P. J., 'Christ, Brennan, Hill and Hopkins, JJ., concur.

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Bluebook (online)

25 A.D.2d 524, 267 N.Y.S.2d 548, 1966 N.Y. App. Div. LEXIS 5023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cord-meyer-development-co-v-coakley-booth-inc-nyappdiv-1966.

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