Tompkins v. State

New York Court of Appeals

Tompkins v. State

165 N.E.2d 424, 7 N.Y.2d 906

CourtNew York Court of Appeals

DecidedJanuary 21, 1960

DocketClaim No. 34193

StatusPublished

Cited by3 cases

This text of 165 N.E.2d 424 (Tompkins v. State) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tompkins v. State, 165 N.E.2d 424, 7 N.Y.2d 906 (N.Y. 1960).

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Opinion

Judgment reversed, with costs to appellants in this court and in the Appellate Division, and the order of the Court of Claims denying the motion to dismiss the claim reinstated. The first cause of action is sufficient since it alleges a continuing wrong by the State in maintaining an improperly constructed highway. As to the State’s further ground for dismissal — that the notice of intention and claim were not timely filed — the claim does not on its face show that it is barred by any Statute of Limitations, The State, of course, will not be barred at the trial from proving such untimeliness if it be the fact. We do not rule on the State’s challenge to the sufficiency of the second, third and fourth causes of action. Since, as above stated, the first cause of action alleges ground for relief, the claim “ is immune from attack for insufficiency, even though it may contain additional allegations that are inadequate to charge any further cause of action ’ ’ (Rager v. McCloskey, 305 N. Y. 75, 80). No opinion.

Concur: Chief Judge Desmond and Judges Die, Fuld, Froessel, Van Voorhis and Burke, Taking no part; Judge Foster.

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Judgment reversed, with costs to appellants in this court and in the Appellate Division, and the order of the Court of Claims denying the motion to dismiss the claim reinstated. The first cause of action is sufficient since it alleges a continuing wrong by the State in maintaining an improperly constructed highway. As to the State’s further ground for dismissal — that the notice of intention and claim were not timely filed — the claim does not on its face show that it is barred by any Statute of Limitations, The State, of course, will not be barred at the trial from proving such untimeliness if it be the fact. We do not rule on the State’s challenge to the sufficiency of the second, third and fourth causes of action. Since, as above stated, the first cause of action alleges ground for relief, the claim “ is immune from attack for insufficiency, even though it may contain additional allegations that are inadequate to charge any further cause of action ’ ’ (Rager v. McCloskey, 305 N. Y. 75, 80). No opinion.

Concur: Chief Judge Desmond and Judges Die, Fuld, Froessel, Van Voorhis and Burke, Taking no part; Judge Foster.

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Bluebook (online)

165 N.E.2d 424, 7 N.Y.2d 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tompkins-v-state-ny-1960.

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