Howard Stores Corp. v. Pope

• 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.
• Court: New York Supreme Court — Appellate Division

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 in this, the third complaint. Accordingly, the second amended complaint is dismissed without leave to replead. Order unanimously reversed with $20 costs and disbursements to the appellant, the motion granted, and judgment is directed to be entered in favor of the appellant dismissing the complaint herein, with costs. Order filed.