Jennings v. High Farms Corp.

• Decision Date: 11 June 1962
• Parties: Prescott JENNINGS, Jr., Elizabeth LeB. Jennings, his wife, William B. Rand, Jr., and Emily F. Rand, his wife, Plaintiffs, v. HIGH FARMS CORPORATION, a dissolved corporation, Gifford Construction Company, George Gifford, Thomas R. Pynchon and Town of Oyster Bay, et al., Defendants.
• Court: New York Supreme Court

Page 854

229 N.Y.S.2d 854

35 Misc.2d 80

Prescott JENNINGS, Jr., Elizabeth LeB. Jennings, his wife, William B. Rand, Jr., and Emily F. Rand, his wife, Plaintiffs, v. HIGH FARMS CORPORATION, a dissolved corporation, Gifford

Construction Company, George Gifford, Thomas R.

Pynchon and Town of Oyster Bay, et al.,

Defendants.

Supreme Court, Special Term, Nassau County, Part I.

June 11, 1962.

Alfred M. Ehrenclou, New York City, for plaintiffs. Kirlin, Campbell & Keating, Earl Q. Kullman, Joseph M. Cunningham, and John A. Dowd, New York City, of counsel.

Attilio E. Braune, Oyster Bay, for defendants, Thomas R. Pynchon, Superintendent of Highways of the Town of Oyster Bay and the Town of Oyster Bay. Carmelo C. Tese, New York City, of counsel.

Andromidas & Pratt, Mineola, for defendants, High Farms Corporation, Gifford Construction Company and George Gifford. George C. Pratt, Mineola, of counsel.

MARIO PITTONI, Justice.

Motion by plaintiffs for a temporary injunction in an action for damages resulting from the allegedly forcible interference with plaintiffs' right of peaceable possession of a strip of land about 50 feet wide and 1,100 feet long, and extending in a southerly direction from the intersection of High Farms Road and the Crossway in the Town of Oyster Bay.

An action for damages for interference with peaceable possession is an action at law (Fults v. Munro, 202 N.Y. 34, 40, 95 N.E. 23, 37 L.R.A., N.S., 600). The instant complaint contains no action for equitable relief, nor do the plaintiffs seek a judgment for a permanent injunction, nor would they be entitled to a permanent injunction. Insofar as the application may be deemed to be made pursuant to section 878, subd. 1, Civil Practice Act, the motion must be denied. (See Reynolds v. Webber, 160 N.Y.S. 177). As stated in Fults v. Munro, supra, 202 N.Y. at p. 40, 95 N.E. at p. 25: 'As this is an action at law, the right to judgment depends on the facts as they stood when it was commenced, instead of, according to the rule in equity, as they stood at the date of the trial' (emphasis supplied). What the defendants may or may not do after the service of the summons would not in any way tend to render ineffectual the judgment for damages (See Babho Realty Co., Inc. v. Feffer, 230 App.Div. 866, 245 N.Y.S. 118; Riessen v. Kaye, 4 Misc.2d 371, 374, 156 N.Y.S.2d 9, 12).

Aside from the foregoing, in an action of this nature the papers submitted must reveal facts sufficient to constitute a cause of action. Here, as to the legal right to recover damages in an action for forcible entry or detainer (section 535, Real Property Law), it must be shown that the entry was 'under circumstances which would naturally inspire fear and lead one to apprehend danger of personal injury if he stood up in defense of his possession (Fults v . Munro, 202 N.Y. 34, 95 N.E. 23; Arout v. Azar, 219 App.Div. 260, 219 N.Y.S.2d 431). Mere trespass does not give rise to such an action * * *.' (Drinkhouse v. Parka Corp., 3 N.Y.2d 82, 91, 164 N.Y . S.2d 1, 7, 143 N.E.2d 767, 771). The...