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Matter of Warner

Appellate Division of the Supreme Court of New York, Second Department
Dec 20, 1943
267 App. Div. 775 (N.Y. App. Div. 1943)

Opinion

December 20, 1943.


Order denying appellants' motion to vacate an ex parte order granting leave to commence and maintain an action at law nunc pro tunc, which order was granted under the provisions of section 1078 of the Civil Practice Act, reversed on the law, without costs, and the motion granted, without costs. Under section 1078 of the Civil Practice Act permission to institute an action is discretionary. The general rule is against granting such permission unless special circumstances are shown which justify a separate proceeding at law. (Carmody, New York Pleading and Practice, Vol. 2, § 578.) The respondent alleges that permission to sue in the action brought or contemplated was not necessary but was sought only as a precautionary measure. That may not be said to be such special circumstance as justified the making of the order. Close, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.


Summaries of

Matter of Warner

Appellate Division of the Supreme Court of New York, Second Department
Dec 20, 1943
267 App. Div. 775 (N.Y. App. Div. 1943)
Case details for

Matter of Warner

Case Details

Full title:In the Matter of WALTER E. WARNER et al., Appellants. KINGS COUNTY SAVINGS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 20, 1943

Citations

267 App. Div. 775 (N.Y. App. Div. 1943)

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