Howard Stores Corp. v. Pope

• Decision Date: 24 May 1956
• Citation: 1 N.Y.2d 806,153 N.Y.S.2d 66
• Parties: , 135 N.E.2d 599 HOWARD STORES CORPORATION et al., Appellants, v. Clarence POPE, d/b/a Colonial Service Floor Scraping and Waxing Company et al., Defendants, and Prospect Floor Supply Co., Inc., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 66

153 N.Y.S.2d 66

1 N.Y.2d 806, 135 N.E.2d 599

HOWARD STORES CORPORATION et al., Appellants, v. Clarence POPE, d/b/a Colonial Service Floor Scraping and Waxing Company et al., Defendants, and Prospect Floor Supply Co., Inc., Respondent.

Court of Appeals of New York.

May 24, 1956.

Appeal from Supreme Court, Appellate Division, First Department, 1 A.D.2d 659, 146 N.Y.S.2d 363.

Tenant and owners of building brought action against floor finisher, seller of floor finishing materials, and manufacturer for fire damage.

The Supreme Court, Special Term, Edgar J. Nathan, Jr., J., entered an order in New York County denying a motion by the seller for an order dismissing the complaint under Rule 106 of the Rules of Civil Practice, and the seller appealed.

The Appellate Division on December 27, 1955, entered judgment on an order, which reversed the order of the Special Term, and which granted the motion and directed that judgment be entered dismissing the complaint, and the tenant and owners appealed.

The Court of Appeals, Desmond, J., 1 N.Y.2d 110, 150 N.Y.S.2d 792, reversed the judgment of the Appellate Division, reinstated the order of the Special Term, denied motion to dismiss complaint, and held that complaint alleging that floor finisher did not know of the nature and danger of the floor finishing materials that he was using, and that seller failed to label cans or otherwise give notice of their nature and dangerous characteristics, and that fire, which was started by a dropped cigarette or match, would not have resulted if seller had given notice of the danger of the floor finisher, sufficiently alleged a cause of action against the seller. Dye and Van Voorhis, JJ., dissented.

Motion was made in the Court of Appeals to amend the remittitur.

Motion to amend the remittitur denied.