Busch v. Interborough Rapid Transit Co.

93 N.Y.S. 372

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 2, 1905
• Status: Published

Opinions

SCOTT, P. J.

The complaint states a cause of action for assault and battery and false imprisonment, and for nothing else. Of such an action the Municipal Court has not jurisdiction. Fister v. Met. St. Ry. Co., 30 Misc. Rep. 430, 62 N. Y. Supp. 467. As was said in the case cited:

“The character of the action must be determined by the substantial allegations of the-complaint, and, when the averments are such as to indicate that the whole scope and purpose of the action is to recover for alleged wrongs, the plaintiff cannot recover for a breach of contract.”

The case made by the complaint entirely differentiates this action from those in which a passenger upon a car has been injured by the manner and method of his eviction. Kearns v. N. Y., etc., R. Co. (Sup.) 86 N. Y. Supp. 179; Hines v. Dry Dock, etc., R. Co., 75 App. Div. 391, 78 N. Y. Supp. 170; Hart v. Met. St. Ry. Co., 65 App. Div. 493, 72 N. Y. Supp. 797. In each of those the gravamen of the complaint was the failure of the defendant to perform the obligation which it had assumed'to safely transport the passenger. Here the defendant refused to assume the obligation. The case is not unlike Palmeri v. Man. Ry. Co., 133 N. Y. 201, 30 N. E. 1001, 16 L. R. A. 136, 28 Am. St. Rep. 632, but that was clearly an action which could not have been brought in the Municipal Court.

The judgment must be reversed and the complaint dismissed, with costs in this court and the court below.

LEVENTRITT, J., concurs.