Jayne v. East Hills Water Dist.
| Decision Date | 08 May 1957 |
| Citation | 164 N.Y.S.2d 284,6 Misc.2d 676 |
| Parties | Evelyn JAYNE and Winifred Niegocki, Plaintiffs, v. EAST HILLS WATER DISTRICT and The Town of Brookhaven. |
| Court | New York Supreme Court |
S. Martin Adelman, Bay Shore, for plaintiffs.
Samuel I. Sloane, Patchogue, for defendants.
This is a motion by the plaintiffs for a discovery and inspection and examination before trial, and a cross-motion by the defendant to dismiss the complaint, or, in the alternative, to direct the plaintiffs to serve a reply to their affirmative defense.
Plaintiff Jayne alleges that she possesses a life tenancy in certain real property and plaintiff Niegocki alleges that she is a reversionary owner thereof. Both allege that the defendants 'entered upon said property on or about May 1, 1955 and have installed pipes thereunder and occupied the same without the permission of the plaintiffs.' They seek injunctive relief and money damages.
The defendants interposed a general denial and an affirmative defense based on the statute of limitations contained in section 67 of the Town Law and section 50-e of the General Municipal Law. It is apparent that the notice of claim required by these sections was not served on either defendant.
Section 67 of the Town Law provides as follows:
The court has been unable to find a similar provision specifically applicable to water districts. Accordingly, section 50-e of the General Municipal Law is not pertinent as to defendant water district.
Even though this action seeks recovery for damages already sustained, its demand is essentially for equitable relief. The defendants, in their brief, acknowledge that where a plaintiff seeks equitable relief for a continuing wrong against a Municipal Corporation, the statute of limitations' provisions of section 67 of the Town...
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Grant v. Town of Kirkland
...67, 44 N.Y.S.2d 153, 159; cf. Bernstein's Duck Farm v. Town of Brookhaven, 21 Misc.2d 953, 71 N.Y.S.2d 311; Jayne v. East Hills Water District, 6 Misc.2d 676, 164 N.Y.S.2d 284). One case has held to the contrary (Meinken v. County of Nassau, 14 Misc.2d 304, 178 N.Y.S.2d 529). There are two ......
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Grant v. Town of Kirkland
...of Gloversville, 175 N.Y. 346, 67 N.E. 622; Meinken v. County of Nassau, 14 Misc.2d 304, 178 N.Y.S.2d 529; Jayne v. East Hills Water District, 6 Misc.2d 676, 164 N.Y.S.2d 284; Foster v. Webster, 8 Misc.2d 61, at page 63, 44 N.Y.S.2d 153, at page 156; Bernstein's Duck Farm v. Town of Brookha......
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...13 N.Y.2d 1134, 247 N.Y.S.2d 130, 196 N.E.2d 561; Grant v. Town of Kirkland, 10 A.D.2d 474, 200 N.Y.S.2d 594; Jayne v. East Hills Water District, 6 Misc.2d 676, 164 N.Y.S.2d 284). The Court finds from the credible evidence in the record that the plaintiff failed to sustain its burden of pro......
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