Tompkins v. State — 7 N.Y.2d 906

Majority

p. 906

Burdette R. Tompkins et al., Appellants, v. State of New York, Respondent.

(Claim No. 34193.)

Argued January 5, 1960;

decided January 21, 1960.

p. 907

Carroll J. Mealey for appellants.

Louis J. Lefkowits, 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 Die, Fuld, Froessel, Van Voorhis and Burke, Taking no part; Judge Foster.

Cases cited

Rager v. McCloskey 305 N. Y. 75 N.Y. 1953-02-26 at 80 p. 907