Fister v. Metropolitan Street Railway Co.

Freedman, P. J. The only question raised by this appeal is whether or not the Municipal Court has jurisdiction of the subject-matter of the cause of action as set forth in the complaint. The complaint alleges that the defendant is a domestic corporation, operating certain cars in the city of New York, and engaged in the business of carrying passengers for hire. That the defendant received the plaintiff upon one of its cars as a passenger, that his fare was paid, that, while he was a passenger and being taken to his destination, he was willfully and maliciously insulted, assaulted, beaten and bruised by the conductor, the servant and employee of the defendant, that the plaintiff was thereby made sick, sore and suffered pain, and claims damages for such insult, assault and beating. The defendant made a motion, in the trial court to dismiss the complaint upon the ground that the cause of action set up therein was for an assault and battery, and that a Municipal Court has no jurisdiction in such an action. The motion was denied and the defendant took an exception thereto. The charter of Greater New York, section 1364, provides that “ Except as provided in the next section the said municipal court has jurisdiction in the following civil actions: “ 2. An action to recover damages for a personal injury or an injury to property, excepting, however, actions to recover damages for an assault, battery, malicious prosecution, false imprisonment, libel, slander, criminal conversation, seduction, or loss of society of a husband or wife.” The plaintiff claims that this action, as set forth in the complaint, does not fall within one of the cases excepted by the foregoing section, that the allegations of the complaint establish the contractual relation of carrier and passenger between the parties, and that the cause of action is for a breach of such contract and properly triable in the Municipal Court. The character of the action must be determined by the substantial allegations of the complaint, and, where the averments are such as to indicate that the whole scope and purpose of the action is to recover for alleged wrongs, the plaintiff cannot recover for a breach of contract. Ross v. Mather, 51 N. Y. 108; Matthews v. Cady, 61 id. 651; Lockwood v. Quackenbush, 83 id. 607. The declarations contained in the complaint plainly charge an assault and battery. There is no allegation of negligence on the part of the defendant nor of failure to perform the alleged contract according to its terms. The language of the pleader clearly, and in express terms, [432] imputes to the defendant the commission of a “ willful, malicious, unprovoked and unjustifiable assault and battery,” and a civil action for such a cause of action cannot be brought in a Municipal “Court. MacLean, J., concurs; Leventritt, J., taking no part. Order and judgment reversed, with costs.