Loudin v. Mohawk Airlines, Inc.

• Decision Date: 06 December 1966
• Citation: Loudin v. Mohawk Airlines, Inc., 275 N.Y.S.2d 359, 27 A.D.2d 517 (N.Y. App. Div. 1966)
• Parties: Donald J. LOUDIN, Plaintiff-Respondent, v. MOHAWK AIRLINES, INC. and Robert E. Peach, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 359

275 N.Y.S.2d 359

27 A.D.2d 517

Donald J. LOUDIN, Plaintiff-Respondent, v.MOHAWK AIRLINES, INC. and Robert E. Peach, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 6, 1966.

Alfred W. Gans, New York City, of counsel(Charles F. Krause, New York City, with him on the brief, Speiser, Shumate, Geoghan & Krause, New York City), for plaintiff-respondent.

J. Howard Carter, New York City, of counsel(James W. Rodgers and Anson M. Keller, New York City, with him on the brief, Townley, Updike, Carter & Lodgers, New York City), for defendants-appellants.

Before RABIN, J.P., and McNALLY, STEVENS, STEUER and CAPOZZOLI, JJ.

PER CURIAM.

Order, entered on February 10, 1966, denying motion to dismiss second amended complaint and granting leave to replead the third cause of action, unanimously reversed, on the law with $50 costs and disbursements to appellants, and with leave to plaintiff to replead the first and second causes of action.

The second amended complaint contains three causes of action.The third cause of action was the sixth cause of action of the second amended complaint which was dismissed by this Court without leave to replead (24 A.D.2d 447, 260 N.Y.S.2d 899).When attention was called to this, plaintiffs cross-moved to replead.This practice is not permissible.The application must be made, preferably by way of motion to amend the order of dismissal, to the same court or judge which dismissed the cause of action.The first and second causes of action are in libel.In effect they allege that the defendants discharged the plaintiff because he certified a pilot as qualified who should not have been certified.There is nothing in the written matter which in any way characterizes plaintiff's act and it is not inferable that he certified the pilot because of improper influences, or that he was generally incapable.Consequently, the article...