Oelkrug v. Gilwaldron Realty Co.

45 Misc. 2d 160, 256 N.Y.S.2d 348, 1964 N.Y. Misc. LEXIS 1183

Opinion

Per Curiam.

Plaintiffs’ first and second causes of action for treble damages for willful overcharges of rent were actions for damages and not for a penalty (Di Bitetto v. Sussman, 279 App. Div. 1033) and should not have been dismissed for failure of the summons to contain an indorsement as required under section 24 of former New York City Municipal Court Code.

The third and fourth causes of action for malicious prosecution were sufficient as pleaded. Failure to include in the indorsement on the summons an allegation that defendant lacked probable cause to commence the criminal prosecutions was not a fatal omission. The short-form pleading here involved is sufficiently particular to give notice of "the nature and substance of the transactions or occurrences intended to be proved (CPLB 3013; CCA, § 902). Dismissal of the third and fourth causes of action upon the opening statement of plaintiffs’ counsel was unwarranted (6 Carmody-Wait, New York Practice, p. 694 et seq., §§ 10, 11).

The judgment should be unanimously reversed and a new trial ordered, with $30 costs to plaintiffs to abide the event. Appeal from order dismissed as academic.

Concur —Di Govanna, Benjamin and Mabgett, JJ.

Judgment reversed, etc.