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Epstein v. Bardonia Park Homes, Inc.

Supreme Court of New York, Appellate Division, Second Department
Feb 27, 1961
13 A.D.2d 980 (N.Y. App. Div. 1961)

Opinion


13 A.D.2d 980 214 N.Y.S.2d 303 Morton M. EPSTEIN and Charlotte Epstein, Respondents, v. BARDONIA PARK HOMES, INC., Appellant. Supreme Court of New York, Second Department February 27, 1961.

         Selmans&s Frey, Spring Valley, for appellant.

         Frederick H. Frey, Spring Valley, of counsel.

         Prindles&s McCormack, Nyack, for respondents.

         James Edward Sterns, Nyack, of counsel.

         In an action to recover damages for breach of a written agreement, under the terms of which defendant agreed at its own cost and expense to widen and deepen a stream which drains the lands of the parties, and to do certain other work, defendant appeals from an order of the County Court, Rockland County, dated September 12, 1960, denying its motion, pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings dismissing the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. Order affirmed, with $10 costs and disbursements. No opinion.

         NOLAN, P. J., and BELDOCK, UGHETTA and CHRIST, JJ., concur.

         KLEINFELD, J., dissents and votes to reverse the order and to grant the motion for judgment on the pleadings dismissing the complaint, with the following memorandum:

         The agreement provides that defendant 'may enter upon' plaintiffs' land 'for the sole purpose of' widening and deepening a stream running from defendant's land to plaintiffs' land. The complaint contains no allegation to the effect that defendant availed itself of the right of entry, and hence no obligation arose on defendant's part to perform any of the covenants in the agreement.

Summaries of

Epstein v. Bardonia Park Homes, Inc.

Supreme Court of New York, Appellate Division, Second Department
Feb 27, 1961
13 A.D.2d 980 (N.Y. App. Div. 1961)
Case details for

Epstein v. Bardonia Park Homes, Inc.

Case Details

Full title:Epstein v. Bardonia Park Homes, Inc.

Court:Supreme Court of New York, Appellate Division, Second Department

Date published: Feb 27, 1961

Citations

13 A.D.2d 980 (N.Y. App. Div. 1961)
214 N.Y.S.2d 303