18 A.D.2d 922 | N.Y. App. Div. | 1963
In an action to recover damages for breach of a contract whereunder the defendant, the City of New Rochelle, inter alia, agreed under certain conditions to compensate the plaintiff water company for relocating its facilities, the city appeals: (1) from an order of the Supreme Court, Westchester County, dated April 10, 1962, which granted plaintiff’s motion for summary judgment, struck out the city’s answer; directed that judgment be entered in plaintiff’s favor; and denied said city’s cross motion for summary judgment; and (2) from the judgment of said court, entered April 27, 1962 on said order, in favor of plaintiff against said defendant city for $33,995.95 (see 34 Misc 2d 952). Order modified: (a) by striking out so much of its decretal paragraph as granted plaintiff’s motion, struck out the answer, and directed the entry of a summary judgment in plaintiff’s favor; and (b) by substituting therefor a provision denying plaintiff’s said motion. As so modified, order affirmed, without. costs. The judgpient is vacated. The common-law duty of a utility to relocate its facilities ait its own expense, when public convenience or necessity so requires, may be changed by contract between the utility and a municipal corporation so that relocation expenses are borne by the municipality (Parfitt v. Furguson, 3 App. Div. 176, affd. 159 N. Y. 111; see Transit Comm. v. Long Is. R. R. Co., 253 N. Y. 345). In our opinion, the city’s liability for plaintiff’s relocation expenses may have been subject to conditions concerning which, upon this record, jfaetual issues exist. The existence of such issues precludes the granting of suipmary judgment in favor of either party. Beldoek, P. J., Kleinfeld, 'Christ, Hill and Hopkins, JJ., concur.
