222 A.D. 67 | N.Y. App. Div. | 1927
Plaintiff, subrogated to the rights of its assured, sues for loss of property caused by an explosion in a munitions plant, which it claims was negligently maintained and operated by the defendant. In the separate defenses challenged the defendant asserts that it did not maintain and operate the plant, but that the plant was operated and controlled by the government of the United States. The contract between the government and the defendant is incorporated in the pleadings by stipulation, and standing alone does not as a matter of law substantiate the defendant’s claim.
We can see no possible injury to the plaintiff in permitting these defenses to stand. The rules of substantive law above stated must in any event govern the trial of this action.
For these reasons the order appealed from should be affirmed, with ten dollars costs and disbursements.
Dowling, P. J., Merrell, Martin and O’Malley, JJ., concur.
Order affirmed, with ten dollars costs and disbursements.