Opinion
280 A.D. 324 113 N.Y.S.2d 429 ELDORA REALTY CORP., Appellant, v. WILLIAM NICHOLSON, Respondent. Supreme Court of New York, First Department. June 18, 1952
APPEAL from an order of the Supreme Court at Special Term (VALENTE, J.), entered March 20, 1952, in New York County, which denied a motion by plaintiff (1) for an order striking out certain paragraphs of the amended answer, and striking out said answer, (2) for judgment on the pleadings and on admissions under rule 112 of the Rules of Civil Practice and section 476 of the Civil Practice Act, and (3) for an assessment of damages.
COUNSEL
Ralph E. Freidus for appellant.
Thos. B. Richmond for respondent.
Per Curiam.
This is an action by a landlord to compel a tenant to remove a television antenna from the exterior of a building and for damages. The answer consists of denials of the allegations of the complaint that plaintiff had demanded removal of the installation and that defendant had refused to remove it, and alleges that authority was given by an agent of plaintiff to place the television antenna where it was placed. Plaintiff has moved on affidavits to strike the denials of the answer as sham and for judgment on the pleadings and admissions and for an assessment of damages.
Although a triable issue, bearing on damages, may remain as to whether permission was given to defendant by an authorized agent of plaintiff for the installation of the television antenna, it is clear that such permission would amount only to a revocable license and that upon plaintiff's demand defendant was obliged to remove the antenna. The denials in the answer are patently sham and there is no triable issue as to the rights of the parties after plaintiff demanded the removal of the antenna.
The order appealed from should be reversed, with $20 costs and disbursements to appellant, and judgment granting an injunction and directing an assessment of damages, if any, should be entered.
PECK, P. J., DORE, CALLAHAN and SHIENTAG, JJ., concur; COHN, J., dissents and votes to affirm.
Order reversed, with $20 costs and disbursements to appellant, and judgment should be entered granting an injunction and directing an assessment of damages, if any. Settle order on notice.