Schamber Chemical Co. v. Ross & Kominsky Plumbing & Heating Co.

259 A.D. 784, 18 N.Y.S.2d 368, 1940 N.Y. App. Div. LEXIS 6626

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1940
• Status: Published

Opinion

Judgment and orders affirmed, with costs. Memorandum: The order denjdng the motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action, from which no separate appeal has been taken, is reviewable on the appeal from the judgment under review, especially since the notice of appeal from said judgment specifically refers to said order and brings it up for review. (Civ. Prac. Act, § 580; Barber v. Rowe, 200 App. Div. 290, 295; Ansorge v. Kane, 244 N. Y. 395, 397; Vogeler v. Alwyn Improvement Corp., 247 id. 131, 134, 135; Henry v. New York Post, Inc., 168 Misc. 247, 249; affd., 255 App. Div. 973; affd., 280 N. Y. 842.) The complaint states a cause of action and the motion to dismiss it was properly denied. (Borough Construction Co. v. City of New York, 200 N. Y. 149.) The verdict of the jury is supported by the weight of the evidence. We have examined the rulings complained of and find none of such importance as to warrant our disturbing the finding of the jury. (See Uvalde Asphalt Paving Co. v. City of New York, 154 App. Div. 112; affd., 211 N. Y. 560; Collins v. State of New York, 259 id. 200; American Bridge Co., Inc., v. State of New York, 245 App. Div. 535, 541; Davison v. Klaess, 280 N. Y. 252, 261; Hotchkiss v. City of Binghamton, 211 id. 279, 283; Bridges & Co., Inc., v. Barry, 237 id. 281, 284, 285; Litchfield Construction Co. v. City of New York, 244 id. 251.) All concur. (The judgment is for plaintiff in an action to recover the value of additional labor and material made necessary by breach of contract. The first order denies defendant’s motion for a new trial. The second order denies defendant’s motion for a dismissal of plaintiff’s complaint.) Present — Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.