131 N.Y.S. 1 | N.Y. Sup. Ct. | 1911
James A. Casey, as administrator of the estate of Mary E. Ramsey, deceased, brings this action against the Auburn Telephone Company to recover damages for her death, which it is alleged occurred because of the negligence of defendant, in improperly filling an excavation in the sidewalk in the city of Auburn. It appears from the papers that the accident in question occurred April 13, 1907, and that shortly after the accident Mrs. Ramsey commenced an action against the defendant for her injuries, which action was tried in October, 1910, and which resulted in the dismissal of her complaint, and that after her death in February, 1911, a new trial was granted in that action, and that subsequently this plaintiff was appointed administrator of her estate, and brought this action under the authority of section 1902 of the Code of Civil Procedure.
Defendant asks for judgment on the pleadings, as it has a right to do, under section 547 of the Code, upon the following grounds: First. That the complaint does not state who are the next of kin of -Mary E. Ramsey, and it says nothing about injuries to or death of plaintiff’s intestate, but refers to Mrs. Ramsey as plaintiff’s “testatrix.” Second. That the defect in the sidewalk was .too slight in its character to charge defendant with negligence. Third. That the complaint does not state when Mary E. Ramsey died, and that consequently it does not appear that the action was brought within two years after decedent’s death. Fourth. That Mary E. Ramsey i commenced an action against the city of Auburn for this same accident in 1907, which was settled, and that she executed a release to the city, and that such release will bar this action, on the theory that releasing one joint tortfeasor releases all. And these various objections will be considered in their order.
If I am correct in these conclusions, it follows that this motion must be denied, with $10 costs to abide the event.
Ordered accordingly.
Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 57 Hun, 589.