Leary v. City of New York

240 A.D. 911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1933
• Status: Published

Opinion

Order granting defendant’s motion to dismiss the second, third and fourth causes of action reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to answer within ten days from service of a copy of the order herein. Plaintiffs are entitled to the most favorable view of the allegations in the pleading attacked. All the causes of action on plaintiffs’ theory concerned real property situated in Nassau county, with the exception of a portion of a plot involved in the fourth cause of action, upon which an apportionment of the assessment was sought. Whether or not the lands were in fact located within Queens county or Nassau county must await the trial. If the lands in fact are and were located in Nassau county then this form of action is available to the plaintiffs, because section 958 of the Greater New York Charter is to be construed as barring a suit or action in equity or otherwise in reference to the vacating of an assessment only where the land is located within the city of New York. Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ., concur.