Daniels v. City of Albany

Appellate Division of the Supreme Court of New York

Daniels v. City of Albany

21 A.D.2d 920, 251 N.Y.S.2d 208, 1964 N.Y. App. Div. LEXIS 3350

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

DecidedJuly 2, 1964

StatusPublished

Cited by1 cases

This text of 21 A.D.2d 920 (Daniels 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.

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Daniels v. City of Albany, 21 A.D.2d 920, 251 N.Y.S.2d 208, 1964 N.Y. App. Div. LEXIS 3350 (N.Y. Ct. App. 1964).

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Opinion

Herlihy J.

This is an appeal (Action No. 1) from an order of Special Term which granted leave to serve an amended complaint and to increase the ad damnum clause therein. The first cause of action of plaintiff’s amended complaint, captioned “ Cause of Action in Nuisance ” is actually a claim in nuisance growing out of negligence, as evidenced by Paragraph “8” therein and, at most, would only broaden the proof as to what might constitute a continuing act of negligence. Thus, the gravamen of the complaint, in its entirety, is the alleged negligent acts of the defendants which would be the sole basis for any recovery after trial. (Morello v. Brookfield Constr. Co., 4 N Y 2d 83, 90, 91.) It hardly seems necessary to observe that we do not consider the merits of the action. Order of Special Term affirmed, with $10 costs. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.

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Herlihy J.

This is an appeal (Action No. 1) from an order of Special Term which granted leave to serve an amended complaint and to increase the ad damnum clause therein. The first cause of action of plaintiff’s amended complaint, captioned “ Cause of Action in Nuisance ” is actually a claim in nuisance growing out of negligence, as evidenced by Paragraph “8” therein and, at most, would only broaden the proof as to what might constitute a continuing act of negligence. Thus, the gravamen of the complaint, in its entirety, is the alleged negligent acts of the defendants which would be the sole basis for any recovery after trial. (Morello v. Brookfield Constr. Co., 4 N Y 2d 83, 90, 91.) It hardly seems necessary to observe that we do not consider the merits of the action. Order of Special Term affirmed, with $10 costs. Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.

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Bluebook (online)

21 A.D.2d 920, 251 N.Y.S.2d 208, 1964 N.Y. App. Div. LEXIS 3350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniels-v-city-of-albany-nyappdiv-1964.

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