Atlantic & Western Travel, Inc. v. New York Telephone Co.

40 Misc. 2d 950, 244 N.Y.S.2d 751, 1963 N.Y. Misc. LEXIS 1434

• Court: New York Supreme Court
• Decided: November 8, 1963
• Status: Published

Opinion

Owen MoGtvern, J.

Petitioner moves for an order directing the respondent New York Telephone Company to transfer all calls from UL 8-7700 to JIT 6-1950. Respondent New York Telephone Company cross-moves for dismissal of the petition upon the ground that it does not comply with the requirements of articles 4 and 78 of the Civil Practice Law and Rules and it is insufficient. Respondent Nierenherg also cross-moves for the dismissal of the petition for legal insufficiency upon the ground that petitioner seeks thereby to enforce a private contract, to which end petitioner has other and adequate relief.

The defects of form may be correctible, and, if so, the petition in substance remains insufficient. TJL 8-7700 is a telephone number which was assigned to the individual respondent and not to the petitioner. There is no property right in a telephone number. Among the parties in interest a contractual right may arise as to any use or application to be made for the use of a particular number. In this instance, petitioner asserts that the individual respondent was a major stockholder who sold to the petitioner her shares therein. It is alleged that as a part of such sale the telephone number, as an asset of the business, was acquired by the petitioner. As to the individual respondent, no proceeding under article 78 of the Civil Practice Law and Rules will lie to enforce the contract. In the absence of the individual respondent as a party, the claimed contractual right cannot be adjudicated, and a proceeding of this character will not lie against the respondent telephone company.

The cross motions are granted and the petition is dismissed.