Flynn v. Brooklyn Improvement Co. — 226 A.D. 765

Majority

p. 765

Frank Flynn and Marcella Flynn, as Administrators, etc., of Francis Flynn, Deceased, Respondents, v. The Brooklyn Improvement Company, Appellant.

(Appeal No. 2.)

— Order dated March 14, 1929, granting motion to resettle order dated January 21, 1929, reversed upon the law and motion denied, without costs. We fail to appreciate the action of counsel for the respective parties in this appeal. In Flynn v. Brooklyn Improvement Co., No. 1 (ante, p. 765), decided herewith, we have held the complaint, as amplified by the bill of particulars, to be good. The defendant here appeals from an order, made upon motion by plaintiffs, to resettle the original order (Flynn v. Brooklyn Improvement Co., No. 1, supra) by striking out the bill of particulars, which removes the uncertainty arising from the alternative allegation in the complaint that plaintiffs’ intestate was “ lawfully upon or at or near ” the property of defendant. In view of the decision in Flynn v. Brooklyn Improvement Co., No. 1 (supra), the appeal from the order of January 21, 1929, is dismissed. Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ., concur.