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James C. McGuire & Co. v. H. G. Vogel Co.

148 N.Y.S. 178 Court Argued May term, 1914, before GUY, BIJUR, and PENDLETON, JJ. Decision date 1914-06-11 English

Delivered by GUY, J.

Contents

Majority

p. 178
(86 Misc. Rep. 19)
JAMES C. McGUIRE & CO. v. H. G. VOGEL CO.
(Supreme Court, Appellate Term, First Department.
June 11, 1914.)

Headnote

1. Coubts (§ 487[1] )—Municipal Courts—Change of Venue—Time of Application.
A demurrer being a pleading under the express terms of Municipal Court Act (Laws 1902, c. 580) § 145, defendant’s application for a transfer to another district under section 25, authorizing such transfers on demand upon or before a Joinder of issue, should have been made before it demurred and amended its demurrer.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 703, 1307-1315; Dec. Dig. § 487.*]
2. Courts (§ 190*)—Municipal Courts—Appeal—Order Granting or Refusing Transfer of Case.
Error in granting or refusing a transfer from one district of a Municipal Court to another can only be reviewed upon appeal from the final judgment.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190;* Appeal and Error, Cent. Dig. § 103.]
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by James C. McGuire & Co. against the H. G. Vogel Company. From an order of the Municipal Court of the City of New York, denying a motion to remove the cause from the Third District to the First District of Manhattan, defendant appeals.
Appeal dismissed.
See, also, 148 N. Y. Supp. 176 .
Argued May term, 1914, before GUY, BIJUR, and PENDLETON, JJ.
p. 179
David Bernstein, of New York City, for appellant.
Warren McConihe, of New York City, for respondents.

The summons and complaint were served on March 12, 1914. The summons was returnable March 24, 1914. On the return day defendant demurred, and amended its demurrer on April 1, 1914. Final judgment in plaintiffs’ favor for $402 damages, besides costs, was entered on April 8, 1914. On April 3, 1914, defendant filed an affidavit tending to show that the action should be transferred from the Third District to the First District. The order appealed from was entered on April 15th, the same day on which the appeal from the judgment was taken.

[1] Under the present Municipal Court Act a demurrer is a pleading. Municipal Court Act, § 145. The present Municipal Court practice contemplates an application for a transfer to another district being made upon demand upon or before the joinder of issue (Municipal Court Act, § 25), not after the pleadings have been amended upon applicant’s request.

[2] An order denying an application to transfer a cause is not appealable. Pascocello v. Brooklyn Heights R. R. Co., 26 Misc. Rep. 412 , 56 N. Y. Supp. 177 ; Nolte v. Seymour, 127 App. Div. 178 , 179, 111 N. Y. Supp. 311 ; Watson v. Duryea, 133 App. Div. 233 , 117 N. Y. Supp. 348 . An alleged error in granting or refusing a transfer can only be reviewed upon appeal from the final judgment. People ex rel. McGowan v. Murray, 53 Misc. Rep. 364 , 366, 104 N. Y. Supp. 740 ; Schiller v. Hardenberg, 52 Misc. Rep. 484 , 485, 102 N. Y. Supp. 529 .

Appeal dismissed, with $10 costs. All concur.

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