Imp v. Tully & Di Napoli, Inc.

Appellate Division of the Supreme Court of New York

Imp v. Tully & Di Napoli, Inc.

286 A.D. 841, 142 N.Y.S.2d 212, 1955 N.Y. App. Div. LEXIS 4299

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

DecidedJune 28, 1955

StatusPublished

This text of 286 A.D. 841 (Imp v. Tully & Di Napoli, Inc.) 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

Imp v. Tully & Di Napoli, Inc., 286 A.D. 841, 142 N.Y.S.2d 212, 1955 N.Y. App. Div. LEXIS 4299 (N.Y. Ct. App. 1955).

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Opinion

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The determination that these actions should be jointly tried was an improvident exercise of discretion. Both actions are generally similar in that they seek damages for injury to property as the result of blasting by the appellant in the course of the performance of a contract with the defendant city. The respective properties are stated to be “ within the same area ”, but the extent of that area is not defined in the record. Both complaints allege that subsequent to the making of the contract in March, 1950, and prior to the commencement of each action, the [842]*842alleged damage was done. The complaint in the City Court action was verified on October 17, 1951, and in the Supreme Court action on July 23, 1952. No additional facts as to the dates when the blasting took place have been submitted by the respondents. Nor are sufficient facts alleged which would indicate that the claimed damages arose out of similar negligent acts by the defendant contractor. The issues presented are not so similar that they come within the purview of section 97 of the Civil Practice Act. Concur — Callahan, J. P., Breitel, Bastow and Babin, JJ.

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Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The determination that these actions should be jointly tried was an improvident exercise of discretion. Both actions are generally similar in that they seek damages for injury to property as the result of blasting by the appellant in the course of the performance of a contract with the defendant city. The respective properties are stated to be “ within the same area ”, but the extent of that area is not defined in the record. Both complaints allege that subsequent to the making of the contract in March, 1950, and prior to the commencement of each action, the [842]*842alleged damage was done. The complaint in the City Court action was verified on October 17, 1951, and in the Supreme Court action on July 23, 1952. No additional facts as to the dates when the blasting took place have been submitted by the respondents. Nor are sufficient facts alleged which would indicate that the claimed damages arose out of similar negligent acts by the defendant contractor. The issues presented are not so similar that they come within the purview of section 97 of the Civil Practice Act. Concur — Callahan, J. P., Breitel, Bastow and Babin, JJ.

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Bluebook (online)

286 A.D. 841, 142 N.Y.S.2d 212, 1955 N.Y. App. Div. LEXIS 4299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/imp-v-tully-di-napoli-inc-nyappdiv-1955.