McAvoy v. City of New York — 166 N.Y. 588

Majority

p. 588

Thomas McAvoy, Respondent, v. The City of New York, Appellant.

Headnote

McAvoy v. City of New York, 52 App. Div. 485 , 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, which reversed an interlocutory judgment sustaining a demurrer to the amended complaint and directed judgment overruling said demurrer.

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 counsel), 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, JJ.