201 Misc. 594 | N.Y. Sup. Ct. | 1951
Motion to strike the complaint on the ground that the same fails to state facts sufficient to constitute a cause is denied. The complaint as drawn seeks recovery for breach of contract. The contract relied upon was a franchise held by plaintiff to supply water in a part of the Greater City. The breach pleaded is the failure of defendant to issue permits required by plaintiff to carry on its business under the franchise. Whether or not in such circumstances the holder of a franchise can sue at law or is limited to proceeding under article 78 of the Civil Practice Act has not apparently been determined in this jurisdiction. The dicta relied upon by plaintiff and appearing in Jamaica Water Supply Co. v. City of New York (57 Misc. 475) is the only indication brought to the court’s notice or discovered by independent research which touches on the point.
In McQuillan on Municipal Corporations (3d ed., Vol. 12, § 34.59) it is stated that an action for damages does not lie. It