Howard Stores Corp. v. Pope

• Court: New York Supreme Court — Appellate Division
• Citation: Howard Stores Corp. v. Pope, 146 N.Y.S.2d 363, 1 A.D.2d 659 (N.Y. App. Div. 1955)
• Decision Date: 13 December 1955
• Parties: HOWARD STORES CORPORATION, and John Shinko, Harry Kaye, Maurice Frank, Frank Leto, et al., etc., Plaintiffs-Respondents, v. Clarence POPE, d/b/a Colonial Service Floor Scraping and Waxing Company and Lacquer Corporation of America, Defendants, Impleaded with Prospect Floor Supply Co., Inc., Defendant-Appellant.
• Writing for the Court: Before BREITEL; PER CURIAM

Page 363

146 N.Y.S.2d 363

1 A.D.2d 659

HOWARD STORES CORPORATION, and John Shinko, Harry Kaye Maurice Frank, Frank Leto, et al., etc Plaintiffs-Respondents, v. Clarence POPE, d/b/a Colonial Service Floor Scraping and Waxing Company and Lacquer Corporation of America Defendants, Impleaded with Prospect Floor Supply Co., Inc. Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 13, 1955.

S. B. Dreyer, New York City, for appellant.

S. N. Zipser, New York City, for respondents.

Before BREITEL, J. P., and BASTOW, BOTEIN, RABIN and COX, JJ.

PER CURIAM.

In order to state a cause of action plaintiffs would have to allege that Pope, because of ignorance on his part of the inflammable nature of the material, was induced to forego precautions that he would have taken had the cans been properly labeled. The present complaint lacks a definite allegation to that effect. Although the court has twice pointed out the defect, it it still present...