Citation Numbers: 190 Misc. 1007
Judges: Pecora
Filed Date: 9/23/1947
Status: Precedential
Modified Date: 1/12/2023
This motion to dismiss the first and second counterclaims in defendants’ amended answer raises the question of the appropriate Statute of Limitations applicable to an action to recover damages as a result of an attachment which has been vacated. Plaintiff asserts that the action is one for an injury to property and therefore governed by the three-year Statute of Limitations provided for in subdivision 7 of section 49 of the Civil Practice Act. Although the precise point has not been adjudicated by our court, defendant relies upon the language in Hughes v. Murphy, Inc. (169 Misc. 239, 241) as authority for the proposition that the action is contractual, and therefore
Upon the basis of this pronouncement it would appear that the action is not one in tort based upon an injury to property but one in contract predicated upon an undertaking given pursuant to statute. The motion to dismiss the counterclaims is, therefore, denied. Settle order.