In re Nitchie — 125 A.D. 378

Majority

p. 378

In the Matter of the Application of John E. Nitchie, Appellant, for a Writ of Mandamus Directed to David L. Weil, Justice of the Municipal Court of the City of New York, Respondent.

First Department,

April 10, 1908.

Headnote

Practice — venue — Municipal Court, city of Hew York — effect of failure of defendant to demand change to proper district — mandamus to compel justice to try cause.

A justice of the Municipal Court of the city of Hew York cannot be compelled by mandamus to hear a cause in a district to which he has' not been assigned. A justice of said court cannot of his own motion transfer the trial of an action brought in a wrong district, in the absence of a demand by the defendant at the time and in the manner specified in subdivision 4 of section 35 of the Municipal Court Act, or by consent of parties. Although the venue be not properly laid the cause may, nevertheless, be tried, unless the defendant upon joinder of issue demand its removal to the proper district.

Appeal by petitioner, John E. Nitchie, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1908, denying the petitioner’s application for a peremptory writ of mandamus.

Louis H. Porter, for the appellant.

A. Stern, for the respondent.

The application for a peremptory writ of mandamus to compel the respondent, a justice of the Municipal Court of the city of New York, to retain jurisdiction in the Seventh Municipal Court district, and there try the action referred to in the petition, was, under the facts presented in opposition to the writ, properly denied.

The respondent was assigned to hold court in the seventh district during the month of January, 1908, and he will not again be assigned to that district until July, 1908. The hearing on the return of the order to show cause why the writ should not issue was not heard until February, 1908. The court, therefore, could not compel him to hear the case in a district to which he had not been assigned. Whether he has actually made an order — as he

p. 379

threatened to do — transferring the trial of the action from the seventh district to a district in which one of the parties resides does not appear from the record. If he did, the order is void and the action may, nevertheless, be tried in the seventh district. lie conld not, of his own motion, transfer the trial of the action from the district in which it was brought, in the absence of a deman d duly made by the defendant, at the time and in the manner specified in subdivision 4 of section 25 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1904, chap. 625), or the consent of the parties.^[1] If an action is brought in a district which is not the proper one it may, nevertheless, be tried in such district unless the defendant, upon the joinder of issue, demand its removal to the proper district. If no demand is made, then the court has jurisdiction to try the action. This is a privilege given to the defendant of which he may avail himself or not as he sees fit. (Matter of Worth, American Mercantile Agency Co., 124 App. Div. 657 .) Here issue'had been joined, the defendant liad made no demand to have the trial of the action transferred to another district, nor had the parties consented to such change, and the respondent, as justice then presiding in that district, had absolutely no power to transfer the tidal to another district, and if he did so his order, as already said, is void. The action may, nevertheless, be tried in that district, and if the papers relating to the action have been transferred to another district, it will be the duty of the clerk to return them to the seventh district. An intimation from the clerk of the seventh district would doubtless be sufficient to secure the return of such papers, and after such return the action can be restored to the calendar and tried.

The order appealed from, therefore, must be affirmed, but without costs.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

Order affirmed, without costs.

* See Mun. Ot. Act, § 35, subd. 6, added by Laws of 1907, chap. 603.— [Rep.