Cook v. Delaware & Hudson Railroad — 23 A.D.2d 709

Majority

p. 709

Forrest F. Cook et al., Appellants, v. Delaware & Hudson Railroad Corp., Respondent. (And 5 Other Actions.)

Special Term correctly ordered stricken certain subdivisions of paragraphs of the plaintiffs’ complaints (Bástele v. Lehigh & New England B. B. Co., 9 A D 2d 692 ; Ames v. Pennsylvania B. B. Co., 18 Mise 2d 1075). The appellants rely heavily on Daribois v. New York Cent. B. B. Co. ( 12 N Y 2d 234 ) but that case did not concern pleading and is in no way at variance with the long-recognized rules discussed in Bastek and Ames. The court was correct also in not granting leave to the plaintiffs to serve amended complaints as proof of all of the stricken allegations may, insofar as legally admissible, be received under the remaining allegations of the complaints. Order affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Taylor and Hamm, JJ., concur.

Cases cited

Danbois v. New York Central Railroad 12 N Y 2d 234 N.Y. 1963-02-21 p. 709