Kingsland v. Erie County Agricultural Society

273 A.D. 939 | N.Y. App. Div. | 1948

Judgment and orders affirmed, with costs. All concur, except Larkin, J., not voting, and Kimball, J., who dissents and votes for reversal and for dismissal of the complaint in the following memorandum: If the defendants-appellants may not be held liable unless their negligence was a proximate cause of the accident and injury, then I think that, as a matter of law, the plaintiffs failed to make out a case and that the complaint should have been dismissed. My view is, I think, supported by the rule laid down in Perry v. Rochester Lime Co. (219 N. Y. 60), Hall v. New York Telephone Co. (214 N. Y. 49), Morse v. Buffalo Tank Corp. (280 N. Y. 110, and cases therein cited) and Babcock v. Fitzpatrick (221 App. Div. 638). (The portions of the judgment appealed from award plaintiffs judgment against both defendants; allow defendant Agricultural Society to recover over against defendant Fireworks Company any amount it is compelled to pay plaintiffs; and dismisses the counterclaim of defendant Fireworks Company against its codefendant. The order denies defendants’ motion for a new trial; denies their motion for a directed verdict; grants motion by the Agricultural Society to set aside the verdict of no cause as to its counterclaim against defendant Fireworks Company, and directs judgment against the codefendant for any part of the judgment the Agricultural Society was compelled to pay, and denies judgment by defendant Fireworks Company for a directed verdict on its counterclaim against the Agricultural Society, in a negligence action,) Present — Taylor, P. J., MeCum, Larkin, Vaughan and Kimball, JJ.