Solomon v. Brooklyn Cornell Utilities, Inc.

Appellate Division of the Supreme Court of New York

Solomon v. Brooklyn Cornell Utilities, Inc.

265 A.D. 886, 38 N.Y.S.2d 218, 1942 N.Y. App. Div. LEXIS 6326

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

DecidedNovember 30, 1942

StatusPublished

Cited by6 cases

This text of 265 A.D. 886 (Solomon v. Brooklyn Cornell Utilities, Inc.) 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.

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Solomon v. Brooklyn Cornell Utilities, Inc., 265 A.D. 886, 38 N.Y.S.2d 218, 1942 N.Y. App. Div. LEXIS 6326 (N.Y. Ct. App. 1942).

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Opinion

In our opinion plaintiff failed to establish any actionable negligence on the part of either defendant. Defendant Estate of Josiah T. Smith, Inc., was a lessor out of possession at the time of the accident and, therefore, its undertaking to make ¡repairs to the- oil burner created no liability in tort in favor of any person who might be injured by its breach. (Cuttings v. Goetz, 256 N. Y. 287.) As to defendant Brooklyn Cornell Utilities, Inc., all the evidence shows is that the explosion may have occurred from any one of many causes, including, perhaps, negligence on the part of this defendant in making repairs to the oil burner. Where the precise cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover and the complaint should be dismissed. , (White v. Lehigh Valley R. R. Co., 220 N. Y. 131, 135.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.

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In our opinion plaintiff failed to establish any actionable negligence on the part of either defendant. Defendant Estate of Josiah T. Smith, Inc., was a lessor out of possession at the time of the accident and, therefore, its undertaking to make ¡repairs to the- oil burner created no liability in tort in favor of any person who might be injured by its breach. (Cuttings v. Goetz, 256 N. Y. 287.) As to defendant Brooklyn Cornell Utilities, Inc., all the evidence shows is that the explosion may have occurred from any one of many causes, including, perhaps, negligence on the part of this defendant in making repairs to the oil burner. Where the precise cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover and the complaint should be dismissed. , (White v. Lehigh Valley R. R. Co., 220 N. Y. 131, 135.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.

The Arena Company, a Minnesota Corporation, and Hardware Mutual Insurance Company of Minnesota, a Minnesota Corporation v. Minneapolis Gas Company, a Delaware Corporation, A. A. Bennett, Inc., a Minnesota Corporation, Northwestern Fire & Marine Insurance Company, a Minnesota Corporation, Badger Mutual Insurance Company, a Wisconsin Corporation, Underwriters Insurance Company, an Illinois Corporation, and General Insurance Company of America, a Washington Corporation v. Minneapolis Gas Company, a Delaware Corporation

234 F.2d 451 (Eighth Circuit, 1956)

Smith v. City of New York

282 A.D. 495 (Appellate Division of the Supreme Court of New York, 1953)

Bruszaczynaska v. Ruby

267 A.D. 539 (Appellate Division of the Supreme Court of New York, 1944)

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Bluebook (online)

265 A.D. 886, 38 N.Y.S.2d 218, 1942 N.Y. App. Div. LEXIS 6326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solomon-v-brooklyn-cornell-utilities-inc-nyappdiv-1942.

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