Majority
p. 534(52 Misc. Rep. 567) POMERANTZ v. SROKA. (Supreme Court, Appellate Term. February 11, 1907.) Argued before CILDERSLEEVE, MacLEAN, and AMEND, JJ.
Headnote
Coubts—Municipal Coubts—Venue—Change—Application—Sufficiency.Under Municipal Court Act, Laws 1902, p. 1497, c. 580, § 25, subd. 4, providing that, though the district in which an action is brought is not the proper one, the action may be tried there unless transferred to the proper district on demand of defendant made on or before the joinder of issue in writing, or in open court, a demand for the transfer to the proper district must be made before joinder of issue, and must specify the proper ■ district.
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
' Action by Samuel Pomerantz against Louis Sroka. From a judgment for plaintiff, rendered in the Municipal Court of the city of New York, defendant appeals. Affirmed.
Cybulsky & Ecler, for appellant.
According to the return, issue was joined herein on August 21, 1906, and the cause, twice adjourned, was heard on September 19, 1906. The plaintiff was called, and, after he had testified to his residence, counsel for the defendant moved to transfer the cause to the proper district. This was denied, and an exception taken. “As it frequently occurs in the Municipal Court that issue is joined in open court, not in writing, or by written pleadings, the proper, con
p. 535
struction of that section (Mun. Ct. Act, Laws 1902, p. 1497, c. 580, § 25, subd. .4) is that the defendant must demand that the change of the place of trial be made upon or before joinder of issue in writing, or upon or before joinder of issue in open court.” Fischer v. Brooklyn Heights R. Co. (Sup.) 84 N. Y. Supp. 254 ; 256. This the defendant did not do, as he also failed to spécify the district to which the transfer was requested to be made. The judgment should be affirmed, with costs.
Judgment affirmed, with costs. All concur.