
    Katherine Dooley et al., Plaintiffs, v. Marx J. Carsen, Defendant.
    Supreme Court, Special and Trial Term, New York County,
    November 6, 1963.
    Butler, Jablow <& Getter for plaintiffs. Pincus Cashman for defendant.
   Saul S. Streit, J.

This is an action by 10 individuals to recover damages pursuant to subdivision 6 of section 5 of the Emergency Housing Rent Control Law (L. 1946, ch. 274, as amd.) and subdivision 4 of section 71 of the State Rent and Eviction Regulations thereunder and is based upon defendant’s alleged failure to complete the demolition of a building within a period of six months, as provided by section 5 of the Emergency Housing Rent Control Law. The action was advanced to the Day Calendar by the Calendar Clerk under rule IX (par. 2 [a]) of the Rules of the Supreme Court, New York and Bronx Counties. The application to the Clerk was based on the claim that the action was on a statute for the recovery of a sum of money other than a penalty. The defendant moves to remand the cause to its original position on the calendar on the grounds that the action is one to recover a penalty in that the statute permits an award of three times the damages claimed to have been sustained. In construing a similar statute applicable in 1948 which provided that the tenant could recover reasonable attorney’s fees, costs and not more than three times the amount of the overcharge, the court held that the underlying statute provided for damages which are essentially compensatory and that compensatory damages do not constitute a penalty (Statile v. Fawcett Pubs., N. Y. L. J., April 5, 1948, p. 1237, col. 7, affd. 274 App. Div. 1051). The additional objections raised by the defendant are not sufficient and the motion is denied.  