Opinion
November 26, 1963
Order, entered on August 24, 1962, denying defendant's motion to dismiss the complaint for lack of jurisdiction, unanimously reversed, on the law, with $20 costs and disbursements to defendant-appellant, and the motion granted, with $10 costs. Plaintiff is not the grantee of the defendant and privity of contract does not otherwise appear. The action therefore is local and may not be brought in a State other than that in which the land is located, to wit, Ohio. ( Johnson v. Dunbar, 114 N.Y.S.2d 845, affd. 282 App. Div. 720, affd. 306 N.Y. 697; Keyes Marshall Bros. Realty Co. v. Trustees of Canton Christian Coll., 146 App. Div. 796, affd. 205 N.Y. 593; Morris v. Hay, 172 App. Div. 145.) Moreover, section 536 Real Prop. of the Real Property Law (now Real Property Actions and Proceedings Law, § 121), permitting an action to recover damages for injuries to out-of-State real property, requires possession by the injured party at the time the damages are sustained. ( Stark v. Howe Sound Co., 148 Misc. 686, 691, affd. 241 App. Div. 637.)
Concur — Rabin, J.P., McNally, Eager, Steuer and Bergan, JJ.