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Tompkins v. State of New York

Court of Appeals of the State of New York
Jan 21, 1960
165 N.E.2d 424 (N.Y. 1960)

Opinion

Argued January 5, 1960

Decided January 21, 1960

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, RUSSELL G. HUNT, J.

Carroll J. Mealey for appellants.

Louis J. Lefkowitz, Attorney-General ( Julius L. Sackman and Paxton Blair of counsel), for respondent.


Judgment reversed, with costs to appellants in this court and in the Appellate Division, and the order of the Court of Claims denying the motion to dismiss the claim reinstated. The first cause of action is sufficient since it alleges a continuing wrong by the State in maintaining an improperly constructed highway. As to the State's further ground for dismissal — that the notice of intention and claim were not timely filed — the claim does not on its face show that it is barred by any Statute of Limitations. The State, of course, will not be barred at the trial from proving such untimeliness if it be the fact. We do not rule on the State's challenge to the sufficiency of the second, third and fourth causes of action. Since, as above stated, the first cause of action alleges ground for relief, the claim "is immune from attack for insufficiency, even though it may contain additional allegations that are inadequate to charge any further cause of action" ( Rager v. McCloskey, 305 N.Y. 75, 80). No opinion.

Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS and BURKE. Taking no part: Judge FOSTER.


Summaries of

Tompkins v. State of New York

Court of Appeals of the State of New York
Jan 21, 1960
165 N.E.2d 424 (N.Y. 1960)
Case details for

Tompkins v. State of New York

Case Details

Full title:BURDETTE R. TOMPKINS et al., Appellants, v. STATE OF NEW YORK, Respondent…

Court:Court of Appeals of the State of New York

Date published: Jan 21, 1960

Citations

165 N.E.2d 424 (N.Y. 1960)
165 N.E.2d 424
197 N.Y.S.2d 475

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