Clyde v. Wood
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, John L. Clyde, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 26th day of April, 1919, as dismisses the first cause of action set up in the complaint, and also from so much of said judgment as grants defendant a recovery upon his first and third counterclaims.
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Appeal by the plaintiff, John L. Clyde, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 26th day of April, 1919, as dismisses the first cause of action set up in the complaint, and also from so much of said judgment as grants defendant a recovery upon his first and third counterclaims. Appeal by the defendant, Walter Wood, from so much of said judgment as awards plaintiff the sum of $1,000 on his second cause of action upon the verdict of a jury, and also from an order entered in the office of the…
1Opinion of the Court
Kelly, J.:
Considering first the dismissal of plaintiff’s first cause of action for demurrage or damages for unreasonable or undue delay of his vessels. I think the learned trial justice erred in *741dismissing the first cause of action. Immediately on the opening of the case, the court having properly denied a motion to dismiss the first cause of action upon the ground that no cause of action was stated, the defendant’s counsel said: “ Do I understand that counsel elects to proceed on the theory of express contract for demurrage? If he intends to claim both I want to compel him to elect. Mr.…
2Cases cited4 opinions
- Cross v. . BeardNew York Court of Appeals · 1862
- Fulton v. BlakeDistrict Court, N.D. Illinois · 1873
- Henley v. Brooklyn Ice Co.U.S. Circuit Court for the District of Southern New York · 1878
- Scholl v. Albany & Rensselaer Iron & Steel Co.New York Court of Appeals · 1886
3Cited by1 opinion
- Albany Calcium Light Co. v. State Tax CommissionAppellate Division of the Supreme Court of the State of New York · 1977