Schoenfeld v. Mott Avenue Realty Co.

4 Citing cases

  1. Smith v. Earle

    202 App. Div. 305 (N.Y. App. Div. 1922)   Cited 3 times

    " We, furthermore, distinguished the case of Schoenfeld v. Mott Avenue Realty Co. ( 168 App. Div. 91), which was relied upon by the learned justice at Special Term. This action is the statutory action to recover damages for a wrongful act, neglect or default by which the decedent's death was caused. (Code Civ. Proc. § 1902 et seq.; now Decedent Estate Law, § 130 et seq., as added by Laws of 1920, chap. 919.) If death had not ensued, the plaintiff's intestate would have had a cause of action against the defendants for maintaining a nuisance or for negligent acts whereby he sustained injuries.

  2. Glover v. Holbrook, Cabot Rollins Corporation

    189 App. Div. 328 (N.Y. App. Div. 1919)   Cited 6 times

    It is conceded by the plaintiff's counsel, and was stated by the learned justice at Special Term, that each of the causes of action alleged in the complaint would warrant a recovery for unlawfully and wrongfully maintaining a nuisance or for negligence. It is contended that a party cannot be compelled to state the theory on which he will ask a recovery until he has produced his proof. As an authority for this proposition the court cites Schoenfeld v. Mott Avenue Realty Company ( 168 App. Div. 91). In that case, however, the complaint alleged two distinct causes of action, one for a nuisance and the other for negligence, which were separately stated and numbered, and the court held that, these causes of action not being inconsistent, the plaintiff could not be required to make an election between them until she had produced her proof.

  3. Stapleton v. Butensky

    188 App. Div. 237 (N.Y. App. Div. 1919)   Cited 9 times
    In Stapleton v. Butensky, 188 A.D. 237, 177 N.Y.S. 18, defendant was held liable for injuries inflicted by his horse, since "the jury was warranted in inferring that a horse thus manifesting this vicious propensity would also manifest it about the stable and on the occasions when he was under the observation of the owners or their servants, and that in the exercise of proper care they would have discovered it."

    Doubtless liability might be charged and shown either on the theory of negligence in handling the horse, or on the theory that the animal was vicious. ( Clowdis v. Fresno Flume I. Co., 118 Cal. 315; Gropp v. Great Atlantic Pacific Tea Co., 161 App. Div. 859; Schoenfeld v. Mott Avenue Realty Co., 168 id. 91; 1 R.C.L. 1095, § 38; Id. 1109, § 53.) It does not appear whether or not the horse was hitched. But it is not argued that the liability for the horse's biting and kicking could be predicated on the ground of negligence only in failing to tie or otherwise secure the horse, and we express no opinion on that point for there are authorities which hold or tend to hold that such consequences of a failure to secure the horse could not be foreseen.

  4. Moers v. Pell

    181 App. Div. 1 (N.Y. App. Div. 1917)

    Mere allegations with respect to the different theories upon which it is claimed there was a breach of the defendant's duty under the contract is not stating different causes of action; nor are the theories pleaded inconsistent, and, therefore, even upon the trial the plaintiff could not be required to elect between them, but may recover on any pleaded theory of the breach of the contract shown by the evidence. ( Payne v. N.Y., S. W.R.R. Co., 201 N.Y. 436; Schoenfeld v. Mott Ave. Realty Co., 168 App. Div. 91; Snell v. Cornwell, 93 id. 136.) It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.