DePinto v. O'Donnell Transportation Co.

266 A.D. 1002, 45 N.Y.S.2d 414, 1943 N.Y. App. Div. LEXIS 5710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1943
• Status: Published

Opinion

No opinion. (Dore, J., dissents and votes to modify the judgment by reducing the sura recovered to the amount of the limited liability of defendant-appellant, $8,625, with interest and costs.) Order, so far as appealed from, modified by denying the motion of defendant O’Donnell Transportation Co.,, Inc., to amend its answer so as to plead limitation of liability in accordance with the pleadings annexed to the notice of November 28, 1942 [180 Misc. 649], and as so modified affirmed. (Cohn and Callahan, JJ., concur upon the ground that the motion to amend was required to be made within. six months after the commencement of the action under United States Code, title 46, sections 181 to 185, as amended. Untermyer, J., concurs upon the ground that although the defendant O’Donnell" Transportation Co., Inc., is not limited to the period of six months specified in United States Code, section 185, on the merits said defendant is not entitled to limit its liability. Dore, J., dissents and votes to modify the order to the extent of holding that the defendant O’Donnell Transportation Co., Inc., on the merits was entitled to limit its liability upon the ground that the evidence, on plaintiff’s own theory, negatives actual knowledge on the part of the barge owner. [Coryell v. Phipps, 317 U. S. 406, 412; Flat-Top Fuel Co. v. Martin, 85 F. 2d (C. C. A. 2d Cir.) 39, 42.]) Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.; Martin, P. J., taking no part.