4 N.Y.2d 603 (1958)

John J. Kelly et al., Respondents, v. Chester Yannotti et al., Copartners Doing Business under the Name of Y. & F. Landscaping Company, Defendants, and Y. & F. Landscaping Co., Inc., Defendant and Third-Party Plaintiff-Respondent. Aetna Casualty & Surety Company, Third-Party Defendant-Appellant.

Court of Appeals of the State of New York.

Decided June 25, 1958.

Attorney(s) appearing for the Case

Robert A. Dwyer, William S. O'Connor, Archie B. Morrison and Patrick D. Warren for appellant.

Howard E. Levitt, Morris L. Zausmer and Sidney N. Zipser for respondents.

Judges DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur with Chief Judge CONWAY; Judge DESMOND dissents and votes for dismissal of the appeal upon the ground that the question certified is one of discretion only.

Chief Judge CONWAY.

Plaintiffs, owners of a dwelling house in Locust Valley, New York, brought action for property damages arising out of the alleged negligence of the defendants while operating a crane on plaintiffs' front lawn for the digging of a cesspool. According to plaintiffs' complaint, the defendants caused the crane to clamp onto the underground gas main which ran from the street through the front yard...


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