
    Marie Schaefer, Appellant, v. Frank J. Magerle, Respondent.
    Supreme Court, Appellate Term, Second Department,
    October 31, 1924.
    Municipal Court of City of New York — jurisdiction — action for breach of contract — fact that plaintiff relied on admitted violation of restriction in deed to establish action, did not oust Municipal Court of jurisdiction — proof of changed conditions inadmissible under answer containing only general denial.
    A judgment, dismissing plaintiff’s complaint, in an action, the venue of which is laid in the Municipal Court of the City of New York, for a breach of contract, should be reversed and a judgment directed for the plaintiff, since said court is not ousted of jurisdiction by reason of the fact that plaintiff relied upon an admitted violation of a restriction in a former deed to establish his cause of action. Proof of changed conditions was inadmissible under an answer containing a general denial, and in the absence of an equitable defense therein.
    Appeal from a judgment of the Municipal Court, Borough of Queens, Fourth District.
    
      
      John P. Lamerdin, for the appellant.
    
      Joseph B. Clark, for the respondent.
   Pee Cubiam:

Judgment unanimously reversed on the law, with thirty dollars costs to the appellant, and judgment directed for plaintiff for $375, with appropriate costs in the court below.

The action brought by the plaintiff was for breach of contract. The Municipal Court was not ousted of jurisdiction simply because plaintiff, to establish a breach of the contract, relied on an admitted violation of the restriction in a former deed.

When the plaintiff proved that the restriction had been created, it was incumbent upon the defendant'to show that the restriction was no longer in force.

The answer contained only a general denial. No equitable defense was pleaded. Proof, therefore, of changed conditions would not have been admissible.

Present: Cbopsey, Lazansky and MacCrate, JJ.  