Hayes v. 255-79th Realty Corp.

Appellate Division of the Supreme Court of New York

Hayes v. 255-79th Realty Corp.

257 A.D. 991, 13 N.Y.S.2d 605, 1939 N.Y. App. Div. LEXIS 8839

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

DecidedJune 27, 1939

StatusPublished

This text of 257 A.D. 991 (Hayes v. 255-79th Realty Corp.) 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

Hayes v. 255-79th Realty Corp., 257 A.D. 991, 13 N.Y.S.2d 605, 1939 N.Y. App. Div. LEXIS 8839 (N.Y. Ct. App. 1939).

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Opinion

Action for damages for personal injuries in connection with the claimed breaking of a porcelain portion of a shower bath handle. Judgment modified by striking out the provision that the appellant’s complaint be dismissed on the merits and inserting in place thereof a provision that the action is discontinued, with costs, and, as thus modified, the judgment is unanimously affirmed, with costs to the appellant. The record clearly establishes that the plaintiff made a timely motion to discontinue the action before she had “ rested ” and before the issues of fact had been submitted to the trier of the fact. The general rule applied, therefore, that the plaintiff was entitled to a discontinuance upon appropriate terms since the situation did not come within any exception to the general rule as a consequence of the defendant being entitled to affirmative relief because of a counterclaim or the like. (Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226, 230; Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562, 563.) Appeal from order dated May 3,1938, dismissed. Present —■ Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. [See post, p. 1048.]

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Action for damages for personal injuries in connection with the claimed breaking of a porcelain portion of a shower bath handle. Judgment modified by striking out the provision that the appellant’s complaint be dismissed on the merits and inserting in place thereof a provision that the action is discontinued, with costs, and, as thus modified, the judgment is unanimously affirmed, with costs to the appellant. The record clearly establishes that the plaintiff made a timely motion to discontinue the action before she had “ rested ” and before the issues of fact had been submitted to the trier of the fact. The general rule applied, therefore, that the plaintiff was entitled to a discontinuance upon appropriate terms since the situation did not come within any exception to the general rule as a consequence of the defendant being entitled to affirmative relief because of a counterclaim or the like. (Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226, 230; Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562, 563.) Appeal from order dated May 3,1938, dismissed. Present —■ Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. [See post, p. 1048.]

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Bluebook (online)

257 A.D. 991, 13 N.Y.S.2d 605, 1939 N.Y. App. Div. LEXIS 8839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-255-79th-realty-corp-nyappdiv-1939.

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