
    Ernest R. Mortenson, Respondent, et al., Plaintiffs, v. New York Telephone Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 14, 1942.
    
      
      Irving W. Young for appellant.
    
      Sandro Mayer for respondent.
   Per Curiam.

The first cause of action is insufficient as matter of law. It does not allege facts showing, or from which it can be inferred, that liability was imposed on the defendant in spite of the limitation of liability contained in the contract between the parties. This limitation of liability has been recognized as valid in law. (See Weld v. Postal Telegraph-Cable Co., 199 N. Y. 88; Hamilton Employment Service Inc., v. N. Y. Tel. Co., 253 N. Y. 468.)

The second cause of action is sufficient since it alleges that the defendant wilfully and unlawfully discontinued the service. Against such an allegation the defense of limitation of liability cannot prevail.

Order so far as appealed from modified by dismissing the first cause of action with ten dollars costs and disbursements to appellant, and as modified affirmed.

All concur. Present — McCook, Hammer and Shientag, JJ.  