East 7th Street Realty Corp. v. Damm

Appellate Terms of the Supreme Court of New York

East 7th Street Realty Corp. v. Damm

196 Misc. 920, 96 N.Y.S.2d 118, 1949 N.Y. Misc. LEXIS 3185

Appellate Terms of the Supreme Court of New York·Decided December 23, 1949·Published·Cited by 3 cases

Opinion

Per Curiam.

Section 205 of the Housing and Rent Act of 1947 (U. S. Code, tit. 50, Appendix, § 1895) created a cause of action unknown at common law. The period of limitation set up therein is regarded as a matter of substance limiting the right as well as the remedy, and the filing of a suit within the prescribed period of one year is a condition precedent to recovery. The cause of action set forth in the counterclaim was extinguished after the running of the statutory period (Osbourne v. United States, 164 F. 2d 767; Citrone v. Palladino, 77 N. Y. S. 2d 489; Hill v. Board of Supervisors of Rensselaer Co., 119 N. Y. 344). Such period of limitation may not be extended or modified by a State statute, i. e., section 23 of the Civil Practice Act (United States v. Boomer, 183 F. 726; Osbourne v. United States, supra; The Harrisburg, 119 U. S. 199).

The judgment and final order should be unanimously modified upon the law by striking out the award to the tenant upon her counterclaim and dismissing the counterclaim on the merits, with appropriate costs in the court below, and, as so modified, affirmed with $25 costs to the landlord.

Steinbbiitk, Rubexsteix and Coldex, JJ., concur.

Judgment and final order accordingly.

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Per Curiam.

Section 205 of the Housing and Rent Act of 1947 (U. S. Code, tit. 50, Appendix, § 1895) created a cause of action unknown at common law. The period of limitation set up therein is regarded as a matter of substance limiting the right as well as the remedy, and the filing of a suit within the prescribed period of one year is a condition precedent to recovery. The cause of action set forth in the counterclaim was extinguished after the running of the statutory period (Osbourne v. United States, 164 F. 2d 767; Citrone v. Palladino, 77 N. Y. S. 2d 489; Hill v. Board of Supervisors of Rensselaer Co., 119 N. Y. 344). Such period of limitation may not be extended or modified by a State statute, i. e., section 23 of the Civil Practice Act (United States v. Boomer, 183 F. 726; Osbourne v. United States, supra; The Harrisburg, 119 U. S. 199).

The judgment and final order should be unanimously modified upon the law by striking out the award to the tenant upon her counterclaim and dismissing the counterclaim on the merits, with appropriate costs in the court below, and, as so modified, affirmed with $25 costs to the landlord.

Steinbbiitk, Rubexsteix and Coldex, JJ., concur.

Judgment and final order accordingly.

East 7th Street Realty Corp. v. Damm, 196 Misc. 920, 96 N.Y.S.2d 118, 1949 N.Y. Misc. LEXIS 3185 (N.Y. Ct. App. 1949).

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196 Misc. 920 (East 7th Street Realty Corp. v. Damm) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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