Ogino v. Black

New York Court of Appeals

Ogino v. Black

109 N.E.2d 884, 304 N.Y. 872, 1952 N.Y. LEXIS 1038

CourtNew York Court of Appeals

DecidedDecember 5, 1952

StatusPublished

Cited by24 cases

This text of 109 N.E.2d 884 (Ogino v. Black) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ogino v. Black, 109 N.E.2d 884, 304 N.Y. 872, 1952 N.Y. LEXIS 1038 (N.Y. 1952).

Pincite

Opinion

Per Curiam.

So much of the order of the Appellate Division as affirmed the Special Term orders appealed from, to the extent that they strike out the first two separate affirmative defenses in the amended answer, is affirmed, without costs, and the first, third and fourth certified questions are answered in the affirmative. To answer the second certified question would determine the very issue which the Appellate Division decided should “ await an examination of North Carolina law at such time as the merits of this defense may be considered.” (278 App. Div. 146, 150.) We have no such advisory jurisdiction (Mary Lincoln Candies v. Department of Labor of State of N. Y., 289 N. Y. 262; Schenck v. Barnes, 156 N. Y. 316; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 451); indeed, we refrain at this time from indicating any view as to the sufficiency of defendant’s third affirmative defense. Moreover, the reservation of that issue rests on a proper exercise of discretion (Rules Civ. Prac., rule 103), and thus no decisive question of law is presented for review (Braunworth v. Braunworth, 285 N. Y. 151; Mencher v. Chesley, 297 N. Y. 94).

Accordingly, the second certified question is not answered, and the appeal from that part of the order of the Appellate [875]*875Division which reversed in part the two orders of Special Term and reinstated the third affirmative defense in the amended answer, is dismissed, without costs.

On the appeal of appellant-respondent: The order should be affirmed, without costs; the first, third and fourth questions certified are answered in the affirmative.

On the appeal of respondent-appellant: The appeal should be dismissed, without costs; the second question certified is not answered.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

On appeal of appellant-respondent: Order affirmed, etc.

On appeal of respondent-appellant: Appeal dismissed, etc.

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Per Curiam.

So much of the order of the Appellate Division as affirmed the Special Term orders appealed from, to the extent that they strike out the first two separate affirmative defenses in the amended answer, is affirmed, without costs, and the first, third and fourth certified questions are answered in the affirmative. To answer the second certified question would determine the very issue which the Appellate Division decided should “ await an examination of North Carolina law at such time as the merits of this defense may be considered.” (278 App. Div. 146, 150.) We have no such advisory jurisdiction (Mary Lincoln Candies v. Department of Labor of State of N. Y., 289 N. Y. 262; Schenck v. Barnes, 156 N. Y. 316; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 451); indeed, we refrain at this time from indicating any view as to the sufficiency of defendant’s third affirmative defense. Moreover, the reservation of that issue rests on a proper exercise of discretion (Rules Civ. Prac., rule 103), and thus no decisive question of law is presented for review (Braunworth v. Braunworth, 285 N. Y. 151; Mencher v. Chesley, 297 N. Y. 94).

Accordingly, the second certified question is not answered, and the appeal from that part of the order of the Appellate [875]*875Division which reversed in part the two orders of Special Term and reinstated the third affirmative defense in the amended answer, is dismissed, without costs.

On the appeal of appellant-respondent: The order should be affirmed, without costs; the first, third and fourth questions certified are answered in the affirmative.

On the appeal of respondent-appellant: The appeal should be dismissed, without costs; the second question certified is not answered.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

On appeal of appellant-respondent: Order affirmed, etc.

On appeal of respondent-appellant: Appeal dismissed, etc.

Marguerite T. O'connor, as Administratrix of the Goods, Chattels and Credits of Daniel J. O'connor, Deceased v. Lee-Hy Paving Corp. And Davis E. Clem, Vincent J. Ferruzzo v. Bright Trucking Inc., Joe E. Larson and Landy of Wisconsin, Inc., Fontini Kotsonis, Individually and as Administratrix of the Estate of Padias Kotsonis v. Superior Motor Express, Earnhardt Lumber Co. And the Estate of Kenneth Edward Bentley, Gloria Schwartz and William Schwartz v. Boston Hospital for Women, Also Known as Boston Lying in Hospital, and Luke Gillespie

579 F.2d 194 (Second Circuit, 1978)

McKee v. Johns Manville Corp.

94 Misc. 2d 327 (New York Supreme Court, 1978)

Schultz v. Acme Folding Box Co.

52 A.D.2d 943 (Appellate Division of the Supreme Court of New York, 1976)

Bekkedahl v. North Dakota Workmen's Compensation Bureau

222 N.W.2d 841 (North Dakota Supreme Court, 1974)

Rosinsky v. City of Binghamton

72 Misc. 2d 187 (New York Supreme Court, 1972)

Walsh v. Pluess-Staufer

67 Misc. 2d 885 (New York Supreme Court, 1971)

Cramer v. State Concrete Corp.

189 A.2d 213 (Supreme Court of New Jersey, 1963)

Wolfson v. Mandell

18 A.D.2d 816 (Appellate Division of the Supreme Court of New York, 1963)

Schnall v. 1918 Harmon St. Corp.

26 Misc. 2d 287 (New York Supreme Court, 1960)

Baker v. Matthews

8 A.D.2d 585 (Appellate Division of the Supreme Court of New York, 1959)

Drier v. Randforce Amusement Corp.

17 Misc. 2d 389 (New York Supreme Court, 1959)

Wilson v. Faull

141 A.2d 768 (Supreme Court of New Jersey, 1958)

MATTER OF WEISS v. Franklin Sq. & Munson Fire Dist.

309 N.Y. 52 (New York Court of Appeals, 1955)

Weiss v. Square

127 N.E.2d 804 (New York Court of Appeals, 1955)

Weiss v. Franklin Square & Munson Fire District

283 A.D. 1077 (Appellate Division of the Supreme Court of New York, 1954)

Jonathan Woodner Co. v. Mather

210 F.2d 868 (D.C. Circuit, 1954)

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109 N.E.2d 884, 304 N.Y. 872, 1952 N.Y. LEXIS 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogino-v-black-ny-1952.

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