Bierman v. Werstein

128 N.Y.S. 1091 | N.Y. App. Term. | 1911

Lehman, J.

The plaintiff has recovered judgment in an action for forcible entry and detainer. The plaintiff showed at .the trial that the trespass was accompanied by such force and putting in fear of personal violence as would authorize the award of treble damages if the Municipal Court had jurisdiction to award such damages.

While the Municipal Court Act does not specifically confer jurisdiction to try/actions under section 1669 of the Code, it does confer jurisdiction in actions for -trespass and in “ civil -actions or proceedings of which "x" * * justices of the peace had jurisdiction on the thirty-first day of December, 1897.” Apparently justices of the peace had jurisdiction to try actions under section 1669 on that date. In fact, that section of the Code is derived from 2 Revised Statutes, 338, which specifically provided that, upon forcible entry or detainer, the injured party “ shall be entitled to maintain an action o-f trespass and shall recover therein treble the damages assessed by the jury or by a justice of the peace in cases provided by law.”

While I find no opinion of any .appellate court which considers this question, apparently the Appellate Division in the Second Department has recognized the jurisdiction of the municipal courts in actions brought under section 1669 of the Code. Waterbury v. Deckelmann, 50 App. Div. 434.

The appellant -also urges that, since the summons was for $500 damages and the complaint asked for treble damages, the court was without jurisdiction. I think that a fair reading of the complaint shows that the appellant asked treble damages, .amounting to $500, and not for a trebling of the damages asked for in the summons. See Spitzer v. Korminsky, 49 Misc. Rep. 466.

Judgment should, therefore, 'be affirmed, with costs.

Seabury and Gerard, JJ., concur.

Judgment affirmed.