285 A.D. 1044 | N.Y. App. Div. | 1955
Defendants appeal from the order of Special Term denying their motion for summary judgment dismissing the first nine causes of action of the complaint on the ground that they are barred by the three-year Statute of Limitations. If the sole claim is that the defendants negligently performed the duties required of them by the contract between the parties, then the first 'nine causes of action should be dismissed as being barred by the statute. However, sufficient has been shown to require a trial on the issue as to whether the contracts required the defendants to do the work in a certain manner by following certain agreed procedures. If it should be found that such were the contracts and that the defendants failed to do the work contracted for by following the agreed procedures, then the claim of the plaintiff would rest in contract rather than negligence and would not be barred by the Statute of Limitations. Causes of action 1, 4 and 7 could be sustained as causes of action in contract depending upon the proof. Causes 2, 4 and 8 are pleaded in breach of warranty. Causes 3, 6 and 9 are for false representations. It does not appear that discovery of the falsity of the representations was made at a time that would bar the action because of the Statute of Limitations. Disregarding, as one must, the allegations sounding in negligence in these causes of action, there are triable issues of the alleged breach of specific procedures allegedly agreed upon. Order unanimously affirmed, with $20 costs and disbursements to the respondent. Present — Peck, P. J., Cohn, Breitel, Bastow and Rabin, JJ.
