Bermel v. Harnischfeger
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Wilhelmina Harnischfeger, from a judg- ' ment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the plaintiff, entered on the 12th day of January, 1904, upon the decision of the court.
1Opinion of the Court
Woodward, J.:
The pleadings were oral but the return recites that the plaintiff “ complained of the defendant for damages of property,” and the bill of particulars reads: “ Plaintiff claims damages in the sum of $150 on account of the destruction and withholding of a set of plans, drawings, etc., representing a Mausoleum,” etc. This is clearly a statement of a cause of action in tort.
When the cause of action is ex delicto, the plaintiff may waive the tort and sue in assumpsit (Slade v. Montgomery, 53 App. Div. 343, 345, citing Rothschild v. Mack, 115 N. Y. 1), but the plaintiff who has elected…
2Cases cited3 opinions
- Rothschild v. . MackNew York Court of Appeals · 1889
- Neudecker v. . KohlbergNew York Court of Appeals · 1880
- Slade v. MontgomeryAppellate Division of the Supreme Court of the State of New York · 1900
3Cited by3 opinions
- Melnick v. KuklaAppellate Division of the Supreme Court of the State of New York · 1930
- Saraga v. StraussAppellate Division of the Supreme Court of the State of New York · 1924
- Maxol Syndicate, Inc. v. N. T. Hegeman Co.City of New York Municipal Court · 1930