26 A.D.2d 633 | N.Y. App. Div. | 1966
In a consolidated action to recover damages for wrongful death, plaintiffs appeal from portions of two orders of the Supreme Court, Kings County, as follows: (1) from so much of the first order, entered November 12, 1964, as denied their motion to dismiss as legally insufficient the third defense of defendant American Airlines, Inc.; and (2) as limited by their brief, from so much of the second order, entered September 23, 1965, as, upon renewal of the motion, adhered to the original decision. Appeal from first order dismissed, without costs; such order was superseded by the second order granting renewal of the motion. Order of September 23, 1965 insofar as appealed from, affirmed, with $10 costs and disbursements. The defense in question is that plaintiffs’ right of recovery is subject to the exemption and monetary liability limitation of the Warsaw Convention. In our opinion, appellants have at best shown that this defense raises an issue of intention as to whether the original contract for air transportation was so changed after the appellants’ intestate had reached Vancouver that the Convention was not applicable to the last leg of her return passage to New York, Determination of that issue should await trial of the
