Reilly v. Sachs

151 Misc. 699, 272 N.Y.S. 125, 1934 N.Y. Misc. LEXIS 1343

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 24, 1934
• Status: Published

Opinion

Per Curiam.

The purported tender was insufficient in any event to warrant the exclusion from the judgment of interest and costs. But if plaintiff’s actual damage be only two dollars, as claimed by defendant (which point being unnecessary to this decision we do not pass upon), as the action is for an alleged malicious and willful injury to property, the jury, if it found for the plaintiff, might, under appropriate instructions, award other damages. The Municipal Court has jurisdiction of such an action which is not among those excluded from that court’s jurisdiction under section 6 of the Municipal Court Code. The dismissal of the complaint upon motion after amendment of the answer and the purported tender was not warranted. The intermediate order for bill of particulars requiring item 5 to be furnished, does not necessarily affect the judgment and is not reviewable on this appeal.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

Appeal from orders dismissed.

All concur; present, Hammer, Callahan and Shientag, JJ.