Mensch v. Bero Engineering & Construction Corp.

Appellate Division of the Supreme Court of New York

Mensch v. Bero Engineering & Construction Corp.

261 A.D. 1038, 25 N.Y.S.2d 893, 1941 N.Y. App. Div. LEXIS 8624

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

DecidedMarch 5, 1941

StatusPublished

This text of 261 A.D. 1038 (Mensch v. Bero Engineering & Construction 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

Mensch v. Bero Engineering & Construction Corp., 261 A.D. 1038, 25 N.Y.S.2d 893, 1941 N.Y. App. Div. LEXIS 8624 (N.Y. Ct. App. 1941).

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Opinion

Order affirmed, with ten dollars costs and disbursements. Memorandum: While we agree with the Special Term that the second cause of action alleged in the, proposed amended complaint is not subject to the objection that it fails to state a cause of action, we are of the opinion that the therein-alleged cause of action rests upon tort and not upon contract. (McMahon v. Second Ave. R. R. Co., 75 N. Y. 231, 239. See, also, 2 Williston on Contracts [Rev. ed.], § 374.) We think, however, that the allegations, in respect to the contract between the appellant and the State Department of Public Works, are proper to the end that if appellant admits or fails to deny them, respondents will be relieved of the necessity of proving them although the respondents will not be relieved of proving negligence or nuisance based on negligence in respect to the sidewalk condition which respondents claim caused the accident. All concur, except Crosby, P. J., who dissents and votes for reversal and denial of the motion. (The order grants plaintiffs’ motion for leave to serve an amended complaint in an action for damages sustained by reason of falling on a sidewalk being repaired during street construction work.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCum, JJ.

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Order affirmed, with ten dollars costs and disbursements. Memorandum: While we agree with the Special Term that the second cause of action alleged in the, proposed amended complaint is not subject to the objection that it fails to state a cause of action, we are of the opinion that the therein-alleged cause of action rests upon tort and not upon contract. (McMahon v. Second Ave. R. R. Co., 75 N. Y. 231, 239. See, also, 2 Williston on Contracts [Rev. ed.], § 374.) We think, however, that the allegations, in respect to the contract between the appellant and the State Department of Public Works, are proper to the end that if appellant admits or fails to deny them, respondents will be relieved of the necessity of proving them although the respondents will not be relieved of proving negligence or nuisance based on negligence in respect to the sidewalk condition which respondents claim caused the accident. All concur, except Crosby, P. J., who dissents and votes for reversal and denial of the motion. (The order grants plaintiffs’ motion for leave to serve an amended complaint in an action for damages sustained by reason of falling on a sidewalk being repaired during street construction work.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCum, JJ.

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Bluebook (online)

261 A.D. 1038, 25 N.Y.S.2d 893, 1941 N.Y. App. Div. LEXIS 8624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mensch-v-bero-engineering-construction-corp-nyappdiv-1941.

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