Park Tissue Mills, Inc. v. American Chicle Co.

Appellate Division of the Supreme Court of New York

Park Tissue Mills, Inc. v. American Chicle Co.

240 A.D. 914

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

DecidedNovember 15, 1933

StatusPublished

This text of 240 A.D. 914 (Park Tissue Mills, Inc. v. American Chicle Co.) 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

Park Tissue Mills, Inc. v. American Chicle Co., 240 A.D. 914 (N.Y. Ct. App. 1933).

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Opinion

Judgment reversed on the law and a new trial granted, with costs to abide the event. We are of opinion that it was error to dismiss the complaint on the opening, without hearing proof; and that this case does not as a matter of law fall within the rule laid down in Kirshenbaum v. General Outdoor Adv. Co. (258 N. Y. 489)., In that case it appears that there was no covenant to repair; in this case there was such a covenant in the lease, and it must have had some purpose or meaning in respect to the liability of the landlord. It may be necessary for the plaintiff to amend and assert some theory of liability other than negligence. Before it is foreclosed as to its right to recover, opportunity to amend should be afforded, together with the right to present evidence on the subject of the relation of the parties and the circumstances surrounding the execution of the lease, so that the conflicting provisions therein may be better understood in the light of an apparent breach of the covenant to repair. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.

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Judgment reversed on the law and a new trial granted, with costs to abide the event. We are of opinion that it was error to dismiss the complaint on the opening, without hearing proof; and that this case does not as a matter of law fall within the rule laid down in Kirshenbaum v. General Outdoor Adv. Co. (258 N. Y. 489)., In that case it appears that there was no covenant to repair; in this case there was such a covenant in the lease, and it must have had some purpose or meaning in respect to the liability of the landlord. It may be necessary for the plaintiff to amend and assert some theory of liability other than negligence. Before it is foreclosed as to its right to recover, opportunity to amend should be afforded, together with the right to present evidence on the subject of the relation of the parties and the circumstances surrounding the execution of the lease, so that the conflicting provisions therein may be better understood in the light of an apparent breach of the covenant to repair. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.

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Bluebook (online)

240 A.D. 914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/park-tissue-mills-inc-v-american-chicle-co-nyappdiv-1933.

Opinion

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