231 Brightwater Court Realty Corp. v. New York Telephone Co.

Full title: 231 BRIGHTWATER COURT REALTY CORP., Appellant, v. NEW YORK TELEPHONE…

Court: Supreme Court, Appellate Term, First Department

Date published: Dec 21, 1945

186 Misc. 129 (N.Y. App. Term 1945)

59 N.Y.S.2d 882

Opinion

December 21, 1945.

Appeal from the Municipal Court of the City of New York, Borough of Manhattan, SULLIVAN, J.

Samuel Friedman for appellant.

Irving W. Young, Walter K. McFaul and Ralph W. Brown for respondent.

MEMORANDUM

Per Curiam.

The Municipal Court had no jurisdiction of an action for trespass ( Holzer v. New York Telephone Co. [App. Term, 1st Dept.], N.Y.L.J., April 6, 1945, p. 1306, col. 4). The first cause of action therefore was properly dismissed. The Municipal Court, however, has jurisdiction in an action to recover treble damages for willful and unlawful injury to real property ( Marconi Realty Corporation v. Goldstein, 13 N.Y.S.2d 547). It was error, therefore, to dismiss the second cause of action since there were factual issues to be passed upon by the jury.

The judgment should be reversed; judgment directed for defendant on the first cause of action; action severed, and a new trial ordered as to the second cause of action, with $20 costs to appellant to abide the event.

HAMMER, SHIENTAG and HECHT, JJ., concur.

Judgment reversed, etc.