McCann v. City of New York — 166 N.Y. 587

Majority

p. 587

Hugh McCann, Jr., as Administrator of Daniel F. McCann, Deceased, Respondent, v. The City of New York, Appellant.

Headnote

McCann v. City of New York, 52 App. Div. 358 , affirmed.

(Argued January 8, 1901;

decided February 26, 1901.)

Appeal, by permission, from a judgment entered upon an order of the Appellate Division of the Supreme Court in the first judicial department, made June 8, 1900, affirming an interlocutory judgment overruling a demurrer to the amended complaint.

The following question was certified: “ Does the amended complaint herein state facts sufficient to constitute a cause of action \ ”

John Whalen, Corporation Counsel (Theodore Connoly and Terence Farley of cotinsel), for appellant.

Carlos C. Alden and Austen G. Fox for respondent.

Judgment affirmed, with costs, and the question certified answered in the affirmative.

The court does not consider the constitutional question, because it is not plainly presented in the complaint, and for the additional reason that counsel expressly waived its consideration on the argument; no opinion.

Concur: Parker, Ch. J., O’Brien, Bartlett, Haight, Martin, Vann and Landon, J J.