Flynn v. Board of Education

Action to recover damages for personal injuries allegedly suffered by the plaintiff wife as a consequence of slipping upon certain liquid cement on the floor of a corridor in a school under the control of defendant Board of Education of the City of New York. The action was against the Board of Education and the principal of the school, a general contractor and a subcontractor. Companion action of plaintiff’s husband for expenses and loss of services. A jury brought in a verdict in favor of the plaintiff wife in the sum of $10,170, and in favor of the plaintiff husband in the sum of $2,000, against defendants Board of Education and Levenson. The jury’s verdict was also in favor of defendants Caristo Construction Corporation and Newell, Orr & Walsh, Inc., and against the plaintiffs. The court set aside the verdict as inconsistent and contrary to the law. Defendants Caristo Construction Corporation and Newell, Orr & Walsh, Inc., appeal and seek to have the verdict in their favor reinstated. The Board of Education and Levenson appeal and seek to have the order, insofar as it denied their motions to dismiss the complaint, and denies motions for judgment over against defendant Caristo Construction Corporation, decision upon which motions had been reserved, reversed and their motions in those respects granted. On appeals by defendants Caristo Construction Corporation and Newell, Orr & Walsh, Inc., order setting aside the verdict and denying ihotions of said defendants to dismiss the complaint and for directed verdicts, insofar as appealed from, unanimously affirmed, with costs to respondents. No opinion. The appeal by defendant Board of Education and defendant Levenson is dismissed, without costs. 856 The order, insofar as it denies their motions to dismiss the complaint and for judgment over against Caristo Construction Corporation, is not appealable, (Jackman v. Hasbrouck, 168 App. Div. 256; Stephansen v. County of Westchester, 257 App. Div. 1050; Kingsway Construction Co. v. Met. Life Ins. Co., 161 App. Div. 649; Brauer v. Oceanic Steam Navigation Co., 77 App. Div. 407.) The question of appealability was not raised in Abair v. City of New York (269 App. Div. 780, affd. 295 N. Y. 789.) Present — Carswell, Acting P. J., Johnston, Adel, Aldrich and Nolan, JJ.