Polhemus v. Polhemus

Appellate Division of the Supreme Court of New York

Polhemus v. Polhemus

95 N.Y.S. 325, 108 A.D. 353

Appellate Division of the Supreme Court of the State of New York·Decided October 6, 1905·Published·Cited by 1 cases

Opinion

PER CURIAM.

We are of the opinion that under the authority of Flynn v. Brooklyn City Railway Co., 9 App. Div. 269, 41 N. Y. Supp. 566, affirmed 158 N. Y. 493, 53 N. E. 520; Fitchett v. Murphy, 46 App. Div. 181, 61 N. Y. Supp. 182, and Greaves v. Gouge, 69 N. Y. 154, this action was prematurely brought. There is no allegation in the complaint, and no proof was made upon the trial, that the plaintiff applied to the corporation to commence the action, or that it had refused to prosecute or unreasonably delayed the commencement of the action. The judgment must therefore be reversed, and the complaint dismissed, with costs.

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PER CURIAM.

We are of the opinion that under the authority of Flynn v. Brooklyn City Railway Co., 9 App. Div. 269, 41 N. Y. Supp. 566, affirmed 158 N. Y. 493, 53 N. E. 520; Fitchett v. Murphy, 46 App. Div. 181, 61 N. Y. Supp. 182, and Greaves v. Gouge, 69 N. Y. 154, this action was prematurely brought. There is no allegation in the complaint, and no proof was made upon the trial, that the plaintiff applied to the corporation to commence the action, or that it had refused to prosecute or unreasonably delayed the commencement of the action. The judgment must therefore be reversed, and the complaint dismissed, with costs.

Polhemus v. Polhemus, 95 N.Y.S. 325, 108 A.D. 353 (N.Y. Ct. App. 1905).

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