Lamport v. Continental Art Glass & Brass Co.

Appellate Terms of the Supreme Court of New York

Lamport v. Continental Art Glass & Brass Co.

132 N.Y.S. 330

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 22, 1911

StatusPublished

This text of 132 N.Y.S. 330 (Lamport v. Continental Art Glass & Brass Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lamport v. Continental Art Glass & Brass Co., 132 N.Y.S. 330 (N.Y. Ct. App. 1911).

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Opinion

GIEGERICH, J.

Counsel for the appellant very frankly and properly concedes that, so far as the question of the sufficiency of the proof to establish negligence on the part of the defendant is concerned, this case is governed, in principle, by the decisions of this court in Rothblatt v. Solomon, 59 Misc. Rep. 519, 110 N. Y. Supp. 1039, and other cases. These decisions are conclusive upon us, and there is nothing further to be said upon that branch of the case.

So far as the claim that the plaintiffs were guilty of contributory negligence in putting their goods in a place where previous leakages had occurred is concerned, we cannot hold that they were so as a matter of law, in view of the testimony that the leakage had ceased for some months previous. In view of the promises to make the necessary repairs, testified to have been made by the defendant, and the cessation of the leakage for a considerable period thereafter, it was a .question of fact for the trial court whether or not the plaintiffs were required to anticipate the possibility of further leakage, and the record does not justify a reversal on the facts. The same may be said of the appellant’s contention that the plaintiffs did not show that they had taken proper steps to minimize the loss upon discovering the recurrence of the leakage.

The judgment should be affirmed, with costs. All concur.

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GIEGERICH, J.

Counsel for the appellant very frankly and properly concedes that, so far as the question of the sufficiency of the proof to establish negligence on the part of the defendant is concerned, this case is governed, in principle, by the decisions of this court in Rothblatt v. Solomon, 59 Misc. Rep. 519, 110 N. Y. Supp. 1039, and other cases. These decisions are conclusive upon us, and there is nothing further to be said upon that branch of the case.

So far as the claim that the plaintiffs were guilty of contributory negligence in putting their goods in a place where previous leakages had occurred is concerned, we cannot hold that they were so as a matter of law, in view of the testimony that the leakage had ceased for some months previous. In view of the promises to make the necessary repairs, testified to have been made by the defendant, and the cessation of the leakage for a considerable period thereafter, it was a .question of fact for the trial court whether or not the plaintiffs were required to anticipate the possibility of further leakage, and the record does not justify a reversal on the facts. The same may be said of the appellant’s contention that the plaintiffs did not show that they had taken proper steps to minimize the loss upon discovering the recurrence of the leakage.

The judgment should be affirmed, with costs. All concur.

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Bluebook (online)

132 N.Y.S. 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamport-v-continental-art-glass-brass-co-nyappterm-1911.

Opinion

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