Mortenson v. New York Telephone Company

Full title: ERNEST R. MORTENSON, Respondent, et al., Plaintiffs, v. NEW YORK TELEPHONE…

Court: Supreme Court, Appellate Term, First Department

Date published: Dec 14, 1942

179 Misc. 289 (N.Y. App. Term 1942)

38 N.Y.S.2d 949

Opinion

December 14, 1942.

Appeal from the City Court of the City of New York, New York County.

Irving W. Young for appellant.

Sandro Mayer for respondent.

Per Curiam.

The first cause of action is insufficient as matter of law. It does not allege facts showing, or from which it can be inferred, that liability was imposed on the defendant in spite of the limitation of liability contained in the contract between the parties. This limitation of liability has been recognized as valid in law. (See Weld v. Postal Telegraph-Cable Co., 199 N.Y. 88; Hamilton Employment Service Inc., v. N.Y. Tel. Co., 253 N.Y. 468.)

The second cause of action is sufficient since it alleges that the defendant wilfully and unlawfully discontinued the service. Against such an allegation the defense of limitation of liability cannot prevail.

Order so far as appealed from modified by dismissing the first cause of action with ten dollars costs and disbursements to appellant, and as modified affirmed.

All concur. Present — McCOOK, HAMMER and SHIENTAG, JJ.