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CLARA A. RILL v. JOSEPH CHIARELLA (07/15/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


July 15, 1968

CLARA A. RILL, AN INFANT, BY WOODROW W. RILL, HER GUARDIAN AD LITEM, ET AL., RESPONDENTS,
v.
JOSEPH CHIARELLA, DOING BUSINESS UNDER THE NAME OF LEGION FIREWORKS COMPANY, ET AL., APPELLANTS-RESPONDENTS, INCORPORATED VILLAGE OF TUCKAHOE, APPELLANT, ET AL., DEFENDANTS. DOROTHY P. SAVAGE ET AL., RESPONDENTS, V. JOSEPH CHIARELLA, DOING BUSINESS UNDER THE NAME OF LEGION FIREWORKS COMPANY, ET AL., APPELLANTS-RESPONDENTS; INCORPORATED VILLAGE OF TUCKAHOE, APPELLANT, ET AL., DEFENDANTS

In this consolidated action to recover damages for personal injuries and upon derivative causes, defendant Village of Tuckahoe appeals from so much of a judgment of the Supreme Court, Westchester County, entered April 28, 1966 after a non-jury trial, as is in favor of plaintiffs against it and as dismissed its cross complaints against the other defendants; defendant Town of Eastchester appeals from so much of the judgment as is in favor of plaintiffs against it; and defendant Chiarella appeals, as limited by his brief, from so much of the judgment as is in favor of plaintiffs against him and is in favor of defendant Tuckahoe Hose Co. No. 1, Inc., against it upon a cross complaint. (Appeals by plaintiffs and Tuckahoe Hose Co. No. 1, Inc., have been withdrawn or discontinued.) Judgment modified, on the law and the facts, by (1) striking out so much of the decretal paragraphs one to eight, inclusive, as grants judgment, inclusive of costs, in favor of plaintiffs as against defendant Incorporated Village of Tuckahoe; and (2) substituting therefor a decretal paragraph dismissing the complaints of all plaintiffs as against said defendant, with costs.

Rabin, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

It was error to hold that defendant Village of Tuckahoe was liable for failure to require full compliance with section 1894-a of the Penal Law before a permit for fireworks could be issued. The proof was insufficient to establish that such failure was a proximate cause of the accident.

Disposition

As so modified, judgment affirmed, with one bill of costs to said defendant jointly against plaintiffs appearing separately and with one bill of costs jointly to plaintiffs appearing separately, payable jointly by defendants Chiarella and The Town of Eastchester.

19680715

© 1998 VersusLaw Inc.



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