Forte v. Locke Insulator Corp.

Appellate Division of the Supreme Court of New York

Forte v. Locke Insulator Corp.

243 A.D. 684

Appellate Division of the Supreme Court of the State of New York·Decided January 15, 1935·Published·Cited by 2 cases

Opinion

Motion to dismiss appeal denied and motion to substitute administratrix of deceased plaintiff granted. Memorandum: Our determination is based upon the literal language of section 89 of the Civil Practice Act. We have not overlooked decisions which may seem to point in a general direction in conflict with our determination here. (Wood v. Phillips, 11 Abb. Pr. [N. S.] 1; Carr v. Rischer, 119 N. Y. 117, 124; Matter of Tubbiolo, 146 App. Div. 323; Molloy v. Starin, 134 id. 542; Lutz v. Third Ave. R. R. Co., 44 id. 256; Kelsey v. Jewett, 34 Hun, 11.) Nevertheless, in none of the cases was the exact situation before the court which we are considering. The statute has been repeatedly amended and in our opinion, particularly in view of the amendments, the statute should now be literally construed. Motion for leave to appeal to the Court of Appeals on order entered November 14, 1934, denied, with ten dollars costs. Motion for leave to appeal to the Court of Appeals from order denying motion to dismiss appeal and granting motion for substitution of administratrix granted and questions for review certified.

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Motion to dismiss appeal denied and motion to substitute administratrix of deceased plaintiff granted. Memorandum: Our determination is based upon the literal language of section 89 of the Civil Practice Act. We have not overlooked decisions which may seem to point in a general direction in conflict with our determination here. (Wood v. Phillips, 11 Abb. Pr. [N. S.] 1; Carr v. Rischer, 119 N. Y. 117, 124; Matter of Tubbiolo, 146 App. Div. 323; Molloy v. Starin, 134 id. 542; Lutz v. Third Ave. R. R. Co., 44 id. 256; Kelsey v. Jewett, 34 Hun, 11.) Nevertheless, in none of the cases was the exact situation before the court which we are considering. The statute has been repeatedly amended and in our opinion, particularly in view of the amendments, the statute should now be literally construed. Motion for leave to appeal to the Court of Appeals on order entered November 14, 1934, denied, with ten dollars costs. Motion for leave to appeal to the Court of Appeals from order denying motion to dismiss appeal and granting motion for substitution of administratrix granted and questions for review certified.

Forte v. Locke Insulator Corp., 243 A.D. 684 (N.Y. Ct. App. 1935).

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