Druckenmiller v. Shoninger — 15 Daly (N.Y.) 477

Majority

p. 477

Charles H. Druckenmiller, Appellant, against Bernard J. Shoninger et al., Respondents.

(Decided February 3d, 1890.)

Headnote

After removal to this court of an action brought in a district court, the plaintiff is limited in the amount of -his recovery by the special jurisdiction of othe district court; a complaint demanding a greater sum is bad on demurrer.

Appeal from an order of this court overruling a demurrer to an answer.

The action was begun in the District Court in the City of New York for the Fourth Judicial District, by summons, to recover $250, and was removed to this court on defendants’ application. The complaint subsequently served demanded judgment for $700. Defendants answered denying the juris

p. 478

diction of the court. Plaintiff demurred to the answer, and the demurrer was overruled. From the order overruling his demurrer, plaintiff appealed.

John Fennel, for appellant.

John B. Green, for respondents.

The order made by Judge Allen overruling plaintiff’s demurrer to the first defense pleaded in the answer must be affirmed, on the authority of Smith v. White ( 23 N. Y. 572 ) ; Salter v. Parkhurst ( 2 Daly 240 ); Longrill v. Downey ( 7 N. Y. Supp. 503 ).

These cases were evidently considered by Judge Allen when he made such order, and they undoubtedly established the .principle that, when an action is originally brought in a district court, its permanent character must be determined by the declaration and the amount sued for in such court, though subsequently it be removed to this court.

It might be said that no meritorious objection could be made to plaintiffs serving a written complaint, after removal to this court, demanding damages for a sum in excess of the amount the district courts could entertain jurisdiction for. But such practice would unsettle all orderly methods of procedure. If a plaintiff has a claim in excess of the amount the statute allows to be sued for in a district court, he may, of course, bring his action in the first instance in á court of record. But, if he elect to sue in a district court, he must be limited as to the amount of his recovery by the special jurisdiction conferred upon such court. The action is in all essential respects the same after removal as before.

The order appealed from should be affirmed, with costs.

Bischoff, J., concurred.

Order affirmed, with costs.