New Rochelle Water Co. v. City of New Rochelle

Appellate Division of the Supreme Court of New York

New Rochelle Water Co. v. City of New Rochelle

18 A.D.2d 922, 238 N.Y.S.2d 169, 1963 N.Y. App. Div. LEXIS 4408

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

DecidedFebruary 11, 1963

StatusPublished

Cited by1 cases

This text of 18 A.D.2d 922 (New Rochelle Water Co. v. City of New Rochelle) 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

New Rochelle Water Co. v. City of New Rochelle, 18 A.D.2d 922, 238 N.Y.S.2d 169, 1963 N.Y. App. Div. LEXIS 4408 (N.Y. Ct. App. 1963).

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Opinion

In an action to recover damages for breach of a contract whereunder the defendant, the City of New Rochelle, inter alia, agreed under certain conditions to compensate the plaintiff water company for relocating its facilities, the city appeals: (1) from an order of the Supreme Court, Westchester County, dated April 10, 1962, which granted plaintiff’s motion for summary judgment, struck out the city’s answer; directed that judgment be entered in plaintiff’s favor; and denied said city’s cross motion for summary judgment; and (2) from the judgment of said court, entered April 27, 1962 on said order, in favor of plaintiff against said defendant city for $33,995.95 (see 34 Misc 2d 952). Order modified: (a) by striking out so much of its decretal paragraph as granted plaintiff’s motion, struck out the answer, and directed the entry of a summary judgment in plaintiff’s favor; and (b) by substituting therefor a provision denying plaintiff’s said motion. As so modified, order affirmed, without. costs. The judgpient is vacated. The common-law duty of a utility to relocate its facilities ait its own expense, when public convenience or necessity so requires, may be changed by contract between the utility and a municipal corporation so that relocation expenses are borne by the municipality (Parfitt v. Furguson, 3 App. Div. 176, affd. 159 N. Y. 111; see Transit Comm. v. Long Is. R. R. Co., 253 N. Y. 345). In our opinion, the city’s liability for plaintiff’s relocation expenses may have been subject to conditions concerning which, upon this record, jfaetual issues exist. The existence of such issues precludes the granting of suipmary judgment in favor of either party. Beldoek, P. J., Kleinfeld, 'Christ, Hill and Hopkins, JJ., concur.

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In an action to recover damages for breach of a contract whereunder the defendant, the City of New Rochelle, inter alia, agreed under certain conditions to compensate the plaintiff water company for relocating its facilities, the city appeals: (1) from an order of the Supreme Court, Westchester County, dated April 10, 1962, which granted plaintiff’s motion for summary judgment, struck out the city’s answer; directed that judgment be entered in plaintiff’s favor; and denied said city’s cross motion for summary judgment; and (2) from the judgment of said court, entered April 27, 1962 on said order, in favor of plaintiff against said defendant city for $33,995.95 (see 34 Misc 2d 952). Order modified: (a) by striking out so much of its decretal paragraph as granted plaintiff’s motion, struck out the answer, and directed the entry of a summary judgment in plaintiff’s favor; and (b) by substituting therefor a provision denying plaintiff’s said motion. As so modified, order affirmed, without. costs. The judgpient is vacated. The common-law duty of a utility to relocate its facilities ait its own expense, when public convenience or necessity so requires, may be changed by contract between the utility and a municipal corporation so that relocation expenses are borne by the municipality (Parfitt v. Furguson, 3 App. Div. 176, affd. 159 N. Y. 111; see Transit Comm. v. Long Is. R. R. Co., 253 N. Y. 345). In our opinion, the city’s liability for plaintiff’s relocation expenses may have been subject to conditions concerning which, upon this record, jfaetual issues exist. The existence of such issues precludes the granting of suipmary judgment in favor of either party. Beldoek, P. J., Kleinfeld, 'Christ, Hill and Hopkins, JJ., concur.

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Bluebook (online)

18 A.D.2d 922, 238 N.Y.S.2d 169, 1963 N.Y. App. Div. LEXIS 4408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-rochelle-water-co-v-city-of-new-rochelle-nyappdiv-1963.

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