Alioto v. Denisiuk
| Decision Date | 09 May 1960 |
| Citation | 205 N.Y.S.2d 570,23 Misc.2d 292 |
| Parties | Vincent F. ALIOTO, Jr., Plaintiff, v. Waclaw DENISIUK, Defendant. |
| Court | New York Supreme Court |
Lester R. Dimond, Jr., Levittown, for plaintiff.
Anderson & Maggipinto, Sag Harbor, for defendant.
This is a motion pursuant to Rule 109 of the Rules of Civil Practice to strike out the answer and counterclaim upon the grounds they are insufficient as a matter of law.
The facts in brief are as follows: On September 24, 1959, plaintiff was operating his 1956 Chevrolet (in the rural area of Suffolk County) along Sag Harbor Turnpike, Bridgehampton, New York. At the place where the accident occurred the speed limit was fixed at 35 miles per hour and plainly marked. On said date and for some time prior thereto, the defendant, a resident of said County engaged in farming, was the owner of a certain brood sow which at the said time and place weighed approximately three hundred pounds and was pregnant. She was one of a herd of ninety swine owned by the defendant which the latter maintained in an enclosed pen or pasture five acres in area. The enclosure consisted of a galvanized wire fence which defendant had installed one foot below ground level and which he alleges he kept in good repair. It appears that on the date aforesaid, despite the diligent efforts of the defendant to contain the herd within the pasture or pen, this sow escaped from her confinement by swimming under a portion of the fence which had been erected over and through a small pond and by this wholly unforeseeable subterranean feat and in this extraordinary manner she did manage to achieve a short-lived freedom. Having reached adjoining land she perambulated to the highway in seach, no doubt, of adventure, leaving behind the remaining happy herd, hip high in mud. It was while she was thus strolling along the highway in her delicate condition that the plaintiff's automobile did violently collide with an strike said sow, hurtling her through the air some twenty feet to an untimely demise.
The defendant contends that the plaintiff operated his auto carelessly, recklessly and at an excessive rate of speed unmindful of the 'normal and frequent erratic peregrinations of wild and domestic animals' common in this place and area and was thereby negligent in striking and killing his pig for which he seeks recovery on his counterclaim for the value of the sow.
Plaintiff contends that permitting the...
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...v. Alexander, 229 Miss. 704, 91 So.2d 728, 59 A.L.R.2d 1321 (1957); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo. 1961); Alioto v. Denisiuk, 23 Misc.2d 292, 205 N.Y.S.2d 570 (1960); Wilson v. Rule, 169 Kan. 296, 219 P.2d 690 (1950); cf., Green v. Biles-Coleman Lbr. Co., 58 Wash.2d 307, 308, 362 P.......
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...v. Alexander, 229 Miss. 704, 91 So.2d 728, 59 A.L.R.2d 1321 (1957); Hinkle v. Siltamaki, 361 P.2d 37 (Wyo.1961); Alioto v. Denisiuk, 23 Misc.2d 292, 205 N.Y.S.2d 570 (1960); Wilson v. Rule, 169 Kan. 296, 219 P.2d 690 (1950); Cf., Green v. Biles-Coleman Lbr. Co., 58 Wash.2d 307, 308, 362 P.2......
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Saddlemire v. Hunsdon
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