Baracca v. Leton Operating Corp.

Appellate Division of the Supreme Court of New York

Baracca v. Leton Operating Corp.

260 A.D. 877, 22 N.Y.S.2d 907, 1940 N.Y. App. Div. LEXIS 5190

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1940

StatusPublished

This text of 260 A.D. 877 (Baracca v. Leton Operating Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baracca v. Leton Operating Corp., 260 A.D. 877, 22 N.Y.S.2d 907, 1940 N.Y. App. Div. LEXIS 5190 (N.Y. Ct. App. 1940).

Pincite

Opinion

In an action instituted originally in the County Court of Dutchess County, upon a cause of action which plaintiff, in effect, now contends was one in ejectment, the learned Special Term of the Supreme Court, Dutchess county, acting purportedly pursuant to section 110 of the Civil Practice Act, entered an order, upon plaintiff’s motion, removing the cause to the Supreme Court of New York for trial in the county of Dutchess, and directing that all proceedings after the joinder of issue in the County Court be and they were thereby declared to be a nullity and all further proceedings in that court enjoined. The order contained another provision denying plaintiff’s application for leave to serve an amended complaint, with leave to renew. From that order defendant appeals. Order reversed on the law, wdth ten dollars costs and disbursements, and motion for an order removing the cause to the Supreme Court, Dutchess county, and for leave to serve an amended complaint denied, with ten dollars costs. In our opinion, the amended complaint sets forth a cause of action within the purview of Civil Practice Act, section 67, subdivision 1, to procure a judgment requiring specific performance of a contract relating to real property, and not one in ejectment, of which the County Court would have no jurisdiction. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.

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In an action instituted originally in the County Court of Dutchess County, upon a cause of action which plaintiff, in effect, now contends was one in ejectment, the learned Special Term of the Supreme Court, Dutchess county, acting purportedly pursuant to section 110 of the Civil Practice Act, entered an order, upon plaintiff’s motion, removing the cause to the Supreme Court of New York for trial in the county of Dutchess, and directing that all proceedings after the joinder of issue in the County Court be and they were thereby declared to be a nullity and all further proceedings in that court enjoined. The order contained another provision denying plaintiff’s application for leave to serve an amended complaint, with leave to renew. From that order defendant appeals. Order reversed on the law, wdth ten dollars costs and disbursements, and motion for an order removing the cause to the Supreme Court, Dutchess county, and for leave to serve an amended complaint denied, with ten dollars costs. In our opinion, the amended complaint sets forth a cause of action within the purview of Civil Practice Act, section 67, subdivision 1, to procure a judgment requiring specific performance of a contract relating to real property, and not one in ejectment, of which the County Court would have no jurisdiction. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.

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Bluebook (online)

260 A.D. 877, 22 N.Y.S.2d 907, 1940 N.Y. App. Div. LEXIS 5190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baracca-v-leton-operating-corp-nyappdiv-1940.