Zeller v. Smith

Appellate Division of the Supreme Court of New York

Zeller v. Smith

275 A.D.2d 1054

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

DecidedOctober 17, 1949

StatusPublished

This text of 275 A.D.2d 1054 (Zeller v. Smith) 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

Zeller v. Smith, 275 A.D.2d 1054 (N.Y. Ct. App. 1949).

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Opinion

The cross complaint, in form, contains but a single cause of action. In fact, as against the immediate seller to respondent, it contains two causes of action —one in negligence and one for breach of warranty. That defendant has not made any motion. By the fourteenth and nineteenth paragraphs, the pleader may have intended to allege as against the appellant facts which might make it liable for a breach of warranty. Those paragraphs, however, are barren of any allegations of fact showing a warranty by appellant to respondent, and state only conclusions of law. A denial thereof would raise no triable issue. (McClelland v. Climax Hosiery Mills, 252 N. Y. 347, 351.) Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.

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The cross complaint, in form, contains but a single cause of action. In fact, as against the immediate seller to respondent, it contains two causes of action —one in negligence and one for breach of warranty. That defendant has not made any motion. By the fourteenth and nineteenth paragraphs, the pleader may have intended to allege as against the appellant facts which might make it liable for a breach of warranty. Those paragraphs, however, are barren of any allegations of fact showing a warranty by appellant to respondent, and state only conclusions of law. A denial thereof would raise no triable issue. (McClelland v. Climax Hosiery Mills, 252 N. Y. 347, 351.) Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.

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Bluebook (online)

275 A.D.2d 1054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeller-v-smith-nyappdiv-1949.

Opinion

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