Kaufman v. American Youth Hostels, Inc.
| Decision Date | 12 March 1959 |
| Citation | 185 N.Y.S.2d 268,158 N.E.2d 128,5 N.Y.2d 1016 |
| Parties | , 158 N.E.2d 128 Jerome KAUFMAN, individually and as Administrator of the Estate of Lynn Kaufman, Deceased, Appellant, v. AMERICAN YOUTH HOSTELS, INC., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 6 A.D.2d 223, 177 N.Y.S.2d 587.
Father, individually and as administrator of estate of deceased 15 year old daughter, who was fatally injured in fall during mountain climb in Oregon, brought action against New York charitable corporation under Oregon statutes for the death of the daughter, on ground that the corporation was negligent in conducting the mountain climb.
The Supreme Court, Special Term, Westchester County, George M. Fanelli, J., 174 N.Y.S.2d 580, entered an order striking out the corporation's first defense, which was that the corporation was an eleemosynary institution and was therefore immune from liability, and the corporation's third defense that the daughter and her parents executed an agreement, prior to commencement of the trip, purporting to release the corporation from liability, and the corporation appealed.
The Appellate Division, Wenzel, J., 6 A.D.2d 223, 177 N.Y.S.2d 587, modified and affirmed the order and held that sufficiency of the first defense was required to be determined according to Oregon law, but that sufficiency of third defense was required to be determined according to New York law, and that the first defense should not have been struck out, and that striking out of the third defense was correct in so far as it was pleaded as a defense to the father's cause as administrator of the daughter's estate, but was incorrect in so far as it was pleaded as a defense to the father's cause as father of the child.
The Appellate Division, 6 A.D.2d 1016, 178 N.Y.S.2d 623, granted motion of the father for leave to appeal to the Court of Appeals and certified the question: 'Was the order of this court properly made?'
The father appealed to the Court of Appeals.
Garvey & Conway, New York City (Lillian E. Cuff, New York City, of counsel), for respondent.
Order modified by striking out the third affirmative defense as to both causes of action (see Boll v. Sharp & Dohme, Inc., 281 App.Div. 568, 121 N.Y.S.2d 20, affirmed 307 N.Y. 646, 120 N.E.2d 836; Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41, 2 N.E.2d 35; Walters v. Rao Electrical Equipment Co., 289 N.Y. 57, 43 N.E.2d 810, 143 A.L.R. 308)...
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