I. Burack, Inc. v. Metropolitan Plumbing Supply Corp.

Appellate Division of the Supreme Court of New York

I. Burack, Inc. v. Metropolitan Plumbing Supply Corp.

12 A.D.2d 798, 210 N.Y.S.2d 103, 1961 N.Y. App. Div. LEXIS 13260

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

DecidedJanuary 16, 1961

StatusPublished

This text of 12 A.D.2d 798 (I. Burack, Inc. v. Metropolitan Plumbing Supply 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

I. Burack, Inc. v. Metropolitan Plumbing Supply Corp., 12 A.D.2d 798, 210 N.Y.S.2d 103, 1961 N.Y. App. Div. LEXIS 13260 (N.Y. Ct. App. 1961).

Pincite

Opinion

In an action to recover damages claimed to be the result of the sale of defective pipe, defendant appeals: (1) from a resettled order of the Supreme Court, Westchester County, dated October 18, 1960, denying its motion to dismiss the second cause of action in the amended complaint, pursuant to rule 107 of the Rules of Civil Practice, on the ground that said cause is barred by the Statute of Limitations; and (2) from the original order of said court, entered July 12, 1960. Resettled order affirmed, with $10 costs and disbursements. By this decision we hold only that the second cause of action as pleaded in the present amended complaint, while it sets forth an additonal cause of action, is not based on new facts. It is based, rather, on the same facts alleged in the original complaint, which fully apprised defendant of the nature of the claim. This decision is not to be construed as precluding defendant from urging upon the trial its defense of the Statute of Limitations pleaded in its answer. The appeal from the original order is dismissed as academic. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

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In an action to recover damages claimed to be the result of the sale of defective pipe, defendant appeals: (1) from a resettled order of the Supreme Court, Westchester County, dated October 18, 1960, denying its motion to dismiss the second cause of action in the amended complaint, pursuant to rule 107 of the Rules of Civil Practice, on the ground that said cause is barred by the Statute of Limitations; and (2) from the original order of said court, entered July 12, 1960. Resettled order affirmed, with $10 costs and disbursements. By this decision we hold only that the second cause of action as pleaded in the present amended complaint, while it sets forth an additonal cause of action, is not based on new facts. It is based, rather, on the same facts alleged in the original complaint, which fully apprised defendant of the nature of the claim. This decision is not to be construed as precluding defendant from urging upon the trial its defense of the Statute of Limitations pleaded in its answer. The appeal from the original order is dismissed as academic. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.

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Bluebook (online)

12 A.D.2d 798, 210 N.Y.S.2d 103, 1961 N.Y. App. Div. LEXIS 13260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/i-burack-inc-v-metropolitan-plumbing-supply-corp-nyappdiv-1961.