Rubenstein v. Frank De Rosa Co.

Appellate Terms of the Supreme Court of New York

Rubenstein v. Frank De Rosa Co.

126 Misc. 314, 213 N.Y.S. 40, 1925 N.Y. Misc. LEXIS 1169

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 30, 1925

StatusPublished

Cited by1 cases

This text of 126 Misc. 314 (Rubenstein v. Frank De Rosa Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rubenstein v. Frank De Rosa Co., 126 Misc. 314, 213 N.Y.S. 40, 1925 N.Y. Misc. LEXIS 1169 (N.Y. Ct. App. 1925).

Pincite

Opinion

Per Curiam.

Plaintiff’s summons demanded judgment, for $750 and was indorsed “ action to recover a chattel.” Later, in compliance with an order of the court, plaintiff filed a verified complaint. This complaint alleges that the value of the chattel was $750 and alleges $1,000 as damages for its unlawful detention. There was also a second cause of action apparently for breach of contract in failing to repair, paint and deliver on a certain date an automobile (presumably the one sought to be replevied), for which an additional $1,000 is demanded.

Defendant moved to dismiss the complaint on the ground that the Municipal Court had no jurisdiction over the cause of action alleged “ because the amount sued for in the complaint exceeded the jurisdiction of the court.” This motion was granted, but we think erroneously. Subdivision 2 of section 6 of the Municipal Court Code confers jurisdiction in actions “ to recover a chattel * ' * * the aggregate value of which does not exceed one thousand dollars, "with or without damages for the talcing or detention thereof.” The effect of this provision is that if after trial the value of the chattels proves to be greater than $1,000 the Municipal Court will be divested of jurisdiction, otherwise it retains jurisdiction even if the damages for the detention be greater than $1,000. (Barnard v. Devine, 34 Misc. 182.)

If the second cause of action is merely another form or count for the relief demanded for unlawful detention it may be disregarded. If it is another and independent cause of action, the court nevertheless had jurisdiction of the action under subdivision 1 of said section [316]*3166, since the “ amount claimed in the summons ” was only $750 and the court should have permitted the amendment of the complaint asked for. (See Van Clief v. Van Vechten, 130 N. Y. 571, 581, 582.)

The judgment is, therefore, reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Levy and Churchill, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

Plaintiff’s summons demanded judgment, for $750 and was indorsed “ action to recover a chattel.” Later, in compliance with an order of the court, plaintiff filed a verified complaint. This complaint alleges that the value of the chattel was $750 and alleges $1,000 as damages for its unlawful detention. There was also a second cause of action apparently for breach of contract in failing to repair, paint and deliver on a certain date an automobile (presumably the one sought to be replevied), for which an additional $1,000 is demanded.

Defendant moved to dismiss the complaint on the ground that the Municipal Court had no jurisdiction over the cause of action alleged “ because the amount sued for in the complaint exceeded the jurisdiction of the court.” This motion was granted, but we think erroneously. Subdivision 2 of section 6 of the Municipal Court Code confers jurisdiction in actions “ to recover a chattel * ' * * the aggregate value of which does not exceed one thousand dollars, "with or without damages for the talcing or detention thereof.” The effect of this provision is that if after trial the value of the chattels proves to be greater than $1,000 the Municipal Court will be divested of jurisdiction, otherwise it retains jurisdiction even if the damages for the detention be greater than $1,000. (Barnard v. Devine, 34 Misc. 182.)

If the second cause of action is merely another form or count for the relief demanded for unlawful detention it may be disregarded. If it is another and independent cause of action, the court nevertheless had jurisdiction of the action under subdivision 1 of said section [316]*3166, since the “ amount claimed in the summons ” was only $750 and the court should have permitted the amendment of the complaint asked for. (See Van Clief v. Van Vechten, 130 N. Y. 571, 581, 582.)

The judgment is, therefore, reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Levy and Churchill, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

126 Misc. 314, 213 N.Y.S. 40, 1925 N.Y. Misc. LEXIS 1169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubenstein-v-frank-de-rosa-co-nyappterm-1925.

Opinion

Related

Cite This Page — Counsel Stack