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SMITH v. STATE OF NEW YORK

10 Misc.2d 882 (1958)

Maxine Smith, as Administratrix of The Estate of Robert E. Smith, Deceased, Claimant, v. State of New York, Defendant. (Claim No. 32882.)

Court of Claims.

April 16, 1958.

Attorney(s) appearing for the Case

Meyer Fix and Norman Spindelman for claimant.

Jacob K. Javits, Attorney-General (Lawrence H. Wagner of counsel), for defendant.

FRED A. YOUNG, J.

During the course of the trial claimant moved that the defense of contributory negligence on the part of the decedent be taken out of the case on the grounds that it was an affirmative defense which was not pleaded by the State. (Decedent Estate Law, §§ 119, 131.) Claimant relied on Dulinak v. State of New York (177 Misc. 372, affd. 262 App. Div. 1064).

Inasmuch as we have found in our accompanying decision that...

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