Schwartz v. Interborough Rapid Transit Co.

53 Misc. 289, 103 N.Y.S. 80

• Court: New York Supreme Court
• Decided: March 15, 1907
• Status: Published

Opinion

Davis, J.

Appeal from judgment rendered in the Municipal Court in favor of plaintiff for $278.75. The action was brought to recover damages for personal injuries. The defendant claims that the action was for damages resulting from an assault upon plaintiff by the defendant’s servants. In such a case the Municipal Court has no jurisdiction and the judgment should be reversed. Interpreting this complaint in the light of the decision of the Court of Appeals in the case of Busch v. Interborough R. T. Co., 187 N. Y. 388; N. Y. L. J., March 8, 1907, it will appear clearly that the cause of action set forth is the violation of defendant’s contract to carry safely. The complaint sets forth facts showing that the plaintiff became a lawful passenger, and then proceeds to state that the servants of the defendant, while acting as such servants, without cause or provocation and in breach and violation of the duties and obligations of the defendant toward the plaintiff, assaulted me plaintiff, etc

•The action was for a breach of contract and the judgment should be affirmed, with costs.

Gildersleeve and Hendrick, JJ., concur.

Judgment affirmed, with costs.