New York Court of Appeals, 1952

Ogino v. Black

New York Court of Appeals · Decided December 5, 1952

304 N.Y. 872; 109 N.E.2d 884; 1952 N.Y. LEXIS 1038

Cases that cite this one

23 later published cases cite this decision. The 22 that cite it most often are listed here.

O'Connor v. Lee-Hy Paving Corp. (2d Cir. 1978)
Wilson v. Faull (N.J. 1958)
Bekkedahl v. North Dakota Workmen's Compensation Bureau (N.D. 1974)
Cramer v. State Concrete Corp. (N.J. 1963)
Jonathan Woodner Co. v. Mather (D.C. Cir. 1954)
Seatrain Lines, Inc. v. Pennsylvania R. Co. (3d Cir. 1953)
Richards v. Smith (New York Supreme Court 2005)
Liss v. Trans Auto Systems, Inc. (Appellate Division of the Supreme Court of New York 1985)
Bernstein v. Birch Wathen School (Appellate Division of the Supreme Court of New York 1979)
McKee v. Johns Manville Corp. (New York Supreme Court 1978)
Schultz v. Acme Folding Box Co. (Appellate Division of the Supreme Court of New York 1976)
Rosinsky v. City of Binghamton (New York Supreme Court 1972)
Walsh v. Pluess-Staufer (New York Supreme Court 1971)
Wolfson v. Mandell (Appellate Division of the Supreme Court of New York 1963)
Schnall v. 1918 Harmon St. Corp. (New York Supreme Court 1960)
Baker v. Matthews (Appellate Division of the Supreme Court of New York 1959)
Drier v. Randforce Amusement Corp. (New York Supreme Court 1959)
Drier v. Randforce Amusement Corp. (New York Supreme Court 1958)
MATTER OF WEISS v. Franklin Sq. & Munson Fire Dist. (N.Y. 1955)
Weiss v. Square (N.Y. 1955)
Weiss v. Franklin Square & Munson Fire District (Appellate Division of the Supreme Court of New York 1954)
Merkle v. 110 Glen Street Realty Corp. (Appellate Division of the Supreme Court of New York 1953)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Per Curiam.

So much of the order of the Appellate Division as affirmed the Special Term orders appealed from, to the extent that they strike out the first two separate affirmative defenses in the amended answer, is affirmed, without costs, and the first, third and fourth certified questions are answered in the affirmative. To answer the second certified question would determine the very issue which the Appellate Division decided should “ await an examination of North Carolina law at such time as the merits of this defense may be considered.” (278 App. Div. 146, 150.) We have no such advisory jurisdiction (Mary Lincoln Candies v. Department of Labor of State of N. Y., 289 N. Y. 262; Schenck v. Barnes, 156 N. Y. 316; Coatsworth v. Lehigh Valley R. R. Co., 156 N. Y. 451); indeed, we refrain at this time from indicating any view as to the sufficiency of defendant’s third affirmative defense. Moreover, the reservation of that issue rests on a proper exercise of discretion (Rules Civ. Prac., rule 103), and thus no decisive question of law is presented for review (Braunworth v. Braunworth, 285 N. Y. 151; Mencher v. Chesley, 297 N. Y. 94).

Accordingly, the second certified question is not answered, and the appeal from that part of the order of the Appellate *875Division which reversed in part the two orders of Special Term and reinstated the third affirmative defense in the amended answer, is dismissed, without costs.

On the appeal of appellant-respondent: The order should be affirmed, without costs; the first, third and fourth questions certified are answered in the affirmative.

On the appeal of respondent-appellant: The appeal should be dismissed, without costs; the second question certified is not answered.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

On appeal of appellant-respondent: Order affirmed, etc.

On appeal of respondent-appellant: Appeal dismissed, etc.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.