O'Neil v. Foley

Appellate Division of the Supreme Court of New York

O'Neil v. Foley

6 A.D.2d 739, 1958 N.Y. App. Div. LEXIS 7422

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

DecidedMay 23, 1958

StatusPublished

This text of 6 A.D.2d 739 (O'Neil v. Foley) 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

O'Neil v. Foley, 6 A.D.2d 739, 1958 N.Y. App. Div. LEXIS 7422 (N.Y. Ct. App. 1958).

Pincite

Opinion

Appeal by defendants from an order of the Supreme Court entered in St. Lawrence County, denying a motion to dismiss the complaint under rule 106 of the Rules of Civil Practice. A motion addressed to this same complaint by another defendant was denied and an appeal from the order of denial decided at this term (6 A D 2d 739). The action sounds in tort and is brought against some 53 defendants. The motion to dismiss was based upon the failure of the complaint to allege the service of a notice of claim pursuant to section 50-e of the General Municipal Law in an action against “ a public corporation ”. Appellants urge that a “fire district” is a public corporation. However, neither the fire district nor its officers, as such, are parties defendant. The complaint specifically alleges that the defendants “ constituted the members, officers, commissioners and trustees of the Star Lake Fire Department, which was, and still is, an unincorporated association”. Thus, section 50-e has no application at all. Upon an appeal from an order addressed to a pleading we must take the pleading as we find it. Order unanimously affirmed, with $10 costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal by defendants from an order of the Supreme Court entered in St. Lawrence County, denying a motion to dismiss the complaint under rule 106 of the Rules of Civil Practice. A motion addressed to this same complaint by another defendant was denied and an appeal from the order of denial decided at this term (6 A D 2d 739). The action sounds in tort and is brought against some 53 defendants. The motion to dismiss was based upon the failure of the complaint to allege the service of a notice of claim pursuant to section 50-e of the General Municipal Law in an action against “ a public corporation ”. Appellants urge that a “fire district” is a public corporation. However, neither the fire district nor its officers, as such, are parties defendant. The complaint specifically alleges that the defendants “ constituted the members, officers, commissioners and trustees of the Star Lake Fire Department, which was, and still is, an unincorporated association”. Thus, section 50-e has no application at all. Upon an appeal from an order addressed to a pleading we must take the pleading as we find it. Order unanimously affirmed, with $10 costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

6 A.D.2d 739, 1958 N.Y. App. Div. LEXIS 7422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneil-v-foley-nyappdiv-1958.