Ghiglione v. Friedman, 100 N.Y.S. 1024

Ghiglione v. Friedman

100 N.Y.S. 1024 | N.Y. App. Div. | 1906

Miller, J.:

The respondent seeks to sustain the dismissal of the complaint in the Municipal Court on two grounds, to wit: First, that the court did not have jurisdiction of the subject-matter; second, that the complaint did not state facts sufficient to constitute a cause of action. Construing the complaint with the liberality which should be accorded pleadings in the Municipal Court, it will be found to allege in effect that the defendant wrongfully, unlawfully and knowingly caused a notice of mechanic’s lien against plaintiff’s property to be filed in the clerk’s office of Mew York county upon a fictitious claim, 'thereby delaying the work on a building in process of construction, resulting in the loss of a month’s rental of the property.

The appellant urges that the action is one to recover damages for “an injury to property,” and that jurisdiction of such an action is conferred upon the Municipal Court by subdivision 14 of section 1 of.the Municipal Court Act (Laws of 1902, chap. 580). At-first blush it might appear that the term “injury to property” included only some physical injury to tangible property, but it is defined by subdivision 10 of section 3343 of the Code of Civil Procedure to be “ an actionable act, whereby the estate of another is lessened, other than a personal injury or the breach of a contract.” It is plain from this definition that the expression “injury to property,” as used in the act, is to be given a broad and unrestricted méaning, so as to include every invasion of one’s property rights by actionable wrong, and the decisions in this State have quite uniformly construed the expression in this manner. (Buckley v. Mayor, 30 App. Div. 463, 466; Stewart v. Lyman, 62 id. 182,185 ; Bogart v. Dart, 25 Hun, 395; Weiller v. Schreiber, 63 How. Pr. 491; Cleveland v. Barrows, 59 Barb. 364.)

The only question left for consideration, then, is whether the complaint states a cause of action, i. e., is the wrong alleged to have been done the plaintiff actionable ? The respondent urges that the complaint is to be construed as an ineffectual attempt to allege a cause of action either for slander of title, abuse of process or malicious prosecution, but it is not necessary to denominate the cause of action by any. particular name other than ás an action on the case for wrongful injury to property. If the law affords no redress for *608such an injury as is alleged in the complaint, then tile most serious and wanton injury may be inflicted with impunity. Ho reason is suggested by the respondent, except his inability to' classify it, for asserting that no cause of action is alleged. We think the complaint ..states, a cause of action for injury to property, that the Municipal Court has jurisdiction, and that the complaint was improperly dismissed.

• . The judgment' must, therefore, be reversed and a new trial ordered, costs to abide the event.

. Hirsohberg, P. J., Woodward, Hooker' and Rich, J J., concurred.

Judgment of the Municipal .Court reversed and a new trial ordered, costs toabide the event.