Schwartz v. Macrose Lumber & Trim Co.

CourtNew York Supreme Court Appellate Division
Citation29 A.D.2d 781,287 N.Y.S.2d 706
Decision Date26 February 1968
PartiesPaul SCHWARTZ, Respondent, v. MACROSE LUMBER & TRIM CO. Inc. et al., Appellants-Respondents. WILMOD COMPANY, Inc., Third-Party Plaintiff-Appellant-Respondent, v. The NISSHO AMERICAN CORP., Third-Party Defendant-Appellant.

Page 706

287 N.Y.S.2d 706
29 A.D.2d 781
Paul SCHWARTZ, Respondent,
v.
MACROSE LUMBER & TRIM CO. Inc. et al., Appellants-Respondents.
WILMOD COMPANY, Inc., Third-Party Plaintiff-Appellant-Respondent,
v.
The NISSHO AMERICAN CORP., Third-Party Defendant-Appellant.
Supreme Court, Appellate Division, Second Department.
Feb. 26, 1968.

Sidney H. Bishop, Lynbrook, Samuel G. Rabinor, Jamaica, of counsel, for plaintiff-respondent, Albert S. Dranoff, Jamaica, on the brief.

Page 707

E. Edan Spencer, New York City, for defendants-appellants-respondents, Macrose Lumber & Trim Co. Inc. and Macrose Industries, Inc., Walter Feller, New York City, of counsel.

Barry, McTiernan & Congdon, New York City, for defendant and third-party plaintiff-appellant-respondent, Roger P. McTiernan, Michael R. Treanor, New York City, of counsel.

Kamerman & Kamerman, New York City, for third-party defendant-appellant, The Nissho American Corp., Michael I. Begun, Murray H. Paloger, Henry B. Raff, New York City, of counsel.

Before CHRIST, Acting P.J., and BRENNAN, HOPKINS, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendants from stated parts of a judgment of the Supreme Court, Queens County, entered June 13, 1966 after a nonjury trial, and by third-party defendant from the entire judgment and from an order of said court dated August 23, 1966, which denied its motion to resettle the judgment. The judgment is in favor of plaintiff against the three defendants; in favor of the two Macrose defendants on their cross claims against defendant Wilmod; and in favor of defendant Wilmod on its third-party complaint.

Judgment reversed, on the law and the facts; and complaint, cross claims and third-party complaint dismissed, with one bill of costs payable by plaintiff to appellants filing separate briefs.

Appeal from order dismissed, as academic, without costs.

Plaintiff sued, on theories of negligence and breach of warranty, to recover damages for an injury to his eye claimed to have been sustained while he was hammering a nail through a stud into a concrete basement wall. In our opinion, his proof was not sufficient to establish that his injury was caused by the shattering of the nail and the effect of the head of the nail striking his eye. Plaintiff himself testified that he did not know what had struck his eye; though the nail was found with its head missing, the nailhead was not found; nor was the portion of the nail retained after the accident or submitted...

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19 practice notes
  • Chisholm v. J. R. Simplot Co., No. 10667
    • United States
    • United States State Supreme Court of Idaho
    • April 13, 1972
    ...F.Supp. 166 (S.D.N.Y.1970); Harrod v. Edward E. Tower Co., 346 Mass. 532, 194 N.E.2d 392 (1963); Schwartz v. Macrose Lumber & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706 (1968) (mem.), aff'd mem., 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969); Landers v. Safeway Stores, Inc., 172 Or. ......
  • Computerized Radiological Services v. Syntex Corp., No. 78 CV 2831.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 22, 1984
    ...Lumber & Trim Co., 50 Misc.2d 547, 552, 270 N.Y.S.2d 875, 883 (Sup.Ct.Queens Co.1966) ("of medium quality"), rev'd on other grounds, 29 A.D.2d 781, 287 N.Y. S.2d 706 (2d Dep't 1968), aff'd, 24 N.Y.2d 856, 248 N.E.2d 920, 301 N.Y.S.2d 91 (1969). In other words, merchantability refers to whet......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., No. NYAL-PH-8888.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 28, 1992
    ...that proximate cause does not exist where "there are several possible causes of an injury," Schwartz v. Macrose Lumber & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706, 707-08 (2d Dept.1968), aff'd, 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969), dates from the era prior to New York's ado......
  • Rodriguez v. State, No. 54030
    • United States
    • New York Court of Claims
    • April 18, 1974
    ...which the defendant was responsible. Digelormo v. Weil, 260 N.Y. 192, 199--200, 183 N.E. 360 (1932); Schwartz v. Macrose Lbr. & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706, affd. 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969); Morales v. Kiamesha Concord, App.Div.2d, 352 N.Y.S.2d 26 (2......
  • Request a trial to view additional results
19 cases
  • Chisholm v. J. R. Simplot Co., No. 10667
    • United States
    • United States State Supreme Court of Idaho
    • April 13, 1972
    ...F.Supp. 166 (S.D.N.Y.1970); Harrod v. Edward E. Tower Co., 346 Mass. 532, 194 N.E.2d 392 (1963); Schwartz v. Macrose Lumber & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706 (1968) (mem.), aff'd mem., 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969); Landers v. Safeway Stores, Inc., 172 Or. ......
  • Computerized Radiological Services v. Syntex Corp., No. 78 CV 2831.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 22, 1984
    ...Lumber & Trim Co., 50 Misc.2d 547, 552, 270 N.Y.S.2d 875, 883 (Sup.Ct.Queens Co.1966) ("of medium quality"), rev'd on other grounds, 29 A.D.2d 781, 287 N.Y. S.2d 706 (2d Dep't 1968), aff'd, 24 N.Y.2d 856, 248 N.E.2d 920, 301 N.Y.S.2d 91 (1969). In other words, merchantability refers to whet......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., No. NYAL-PH-8888.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 28, 1992
    ...that proximate cause does not exist where "there are several possible causes of an injury," Schwartz v. Macrose Lumber & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706, 707-08 (2d Dept.1968), aff'd, 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969), dates from the era prior to New York's ado......
  • Rodriguez v. State, No. 54030
    • United States
    • New York Court of Claims
    • April 18, 1974
    ...which the defendant was responsible. Digelormo v. Weil, 260 N.Y. 192, 199--200, 183 N.E. 360 (1932); Schwartz v. Macrose Lbr. & Trim Co., 29 A.D.2d 781, 287 N.Y.S.2d 706, affd. 24 N.Y.2d 856, 301 N.Y.S.2d 91, 248 N.E.2d 920 (1969); Morales v. Kiamesha Concord, App.Div.2d, 352 N.Y.S.2d 26 (2......
  • Request a trial to view additional results

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