285 A.D. 818 | N.Y. App. Div. | 1955
Plaintiff appeals from an order insofar as it grants the motion of defendant Tulsa Williams Company to dismiss the amended complaint as to said defendant on the ground that said complaint does not state facts sufficient to constitute a cause of action. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. No opinion. Nolan, P. J., MacCrate and Schmidt, JJ., concur; Wenzel and Beldock, JJ., dissent and vote to reverse the order and to deny the motion to dismiss the amended complaint, with the following memorandum: On April 7, 1952, defendant Algonquin Gas Transmission Company contracted with defendant Tulsa Williams Company for the latter to construct a gas transmission pipeline, which contract contemplated excavation and blasting. While so engaged, defendant Tulsa did some blasting and caused damage to plaintiff’s property. Plaintiff sues as third-party beneficiary of the contract between Algonquin and Tulsa, the claim being that, by the contract Tulsa undertook to pay damages to all persons whose property was damaged, regardless of negli