Opinion · Nylaw New York
STRAUCH v. TOWN OF OYSTER BAY, NASSAU COUNTY, N.Y., 263 App. Div. 833 (1941)
ALICE JANE STRAUCH, by Her Guardian ad Litem, HANS KNEPPER, Respondent, v.THE TOWN OF OYSTER BAY, NASSAU COUNTY, N.Y., Defendant, & HENRYSCHNEPF, Appellant., 263 A.D. 833 (Appellate Division of the Supreme Court of New York, Second Department. 1941)
- Type
- Opinion
- Court
- Nylaw New York
- Jurisdiction
- Nylaw
- Date
- 1941-12-08
- Topic
- general
STRAUCH v. TOWN OF OYSTER BAY, NASSAU COUNTY, N.Y., 263 App. Div. 833 (1941) ALICE JANE STRAUCH, by Her Guardian ad Litem, HANS KNEPPER, Respondent, v.THE TOWN OF OYSTER BAY, NASSAU COUNTY, NEW YORK, Defendant, and HENRYSCHNEPF, Appellant.Appellate Division of the Supreme Court of New York, Second Department. December 8, 1941. In an action brought to recover damages for personal injuries alleged to have been caused by a defect in a sidewalk abutting a certain road in the town of Oyster Bay, Nassau county, order, in so far as appealed from, modified on the law so as to provide that the motion of defendant Henry Schnepf for judgment on the pleadings under rule 112 of the Rules of Civil Practice, be granted, and the amended complaint dismissed as against said defendant, with ten dollars costs.
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STRAUCH v. TOWN OF OYSTER BAY, NASSAU COUNTY, N.Y.,263 App. Div. 833(1941)
ALICE JANE STRAUCH, by Her Guardian ad Litem, HANS KNEPPER, Respondent, v.
THE TOWN OF OYSTER BAY, NASSAU COUNTY, NEW YORK, Defendant, and HENRY
SCHNEPF, Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
In an action brought to recover damages for personal injuries alleged to have been caused by a defect in a sidewalk abutting a certain road in the town of Oyster Bay, Nassau county, order, in so far as appealed from, modified on the law so as to provide that the motion of defendant Henry Schnepf for judgment on the pleadings under rule 112 of the Rules of Civil Practice, be granted, and the amended complaint dismissed as against said defendant, with ten dollars costs. As so modified, the order is affirmed, with ten dollars costs and disbursements to the appellant. The appellant's answer alleges, and the reply admits, that at the time of the happening of the accident Glen Head road was a county road. Subdivision a of section 12-4.0 of the Nassau County Administrative Code (Laws of 1939, chap. 272) provided that the county shall have sole jurisdiction over county roads. The exception made in subdivision b of the same section, in the case of village sidewalks, shows clearly that the general provision is intended to include sidewalks on county roads. That which is not embraced within the exception must be deemed to be within the scope of the general rule. (Matter of Hering,133 App. Div. 293; affd.,196 N.Y. 218;Matter of Dethv.Castimore,245 App. Div. 156.) A contrary provision is to be found in subdivision 18 of section 140 High. of the Highway Law (Laws of 1939, chap. 266). The special law prevails over the general in the locality to which it applies. (People ex rel. Leetv.Keller,157 N.Y. 90,96.) Moreover, the statutes were enacted simultaneously and should, therefore, be so construed as to give effect to each. (McMasterv.Gould,240 N.Y. 379.) These rules of construction require us to hold that the foregoing section and subdivision of the Highway Law are not applicable in Nassau county. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.