Richardson & Boynton Co. v. Schiff — 87 N.Y.S. 672

Majority

p. 672

RICHARDSON & BOYNTON CO. v. SCHIFF.

(Supreme Court, Appellate Division, Second Department.

April 15, 1904.)

Headnote

1. Witnesses—Examination before Trial—Parties.

Where the papers on an application for the examination of the defendant before trial failed to show that it was either important or necessary that her" testimony should be taken before, rather than at, the trial, an order granting such application was erroneous.

2. Appeals—Appellate Division—Jurisdiction.

Where a complaint filed in the City Court of Yonkers, verified on October 27, 1903, demanded judgment for $99, with interest from November 8, 1902, the amount involved was in excess of $100, so as to justify an appeal to the Appellate Division, under Laws 1893, p. .873, c. 416, tit. 9, § 1, declaring that appeals from such court shall be heard by the County Court

V1. See Discovery, vol. 16, Cent. Dig. §§ 49, 69.

p. 673

of Westchester county where the judgment appealed from is in an action in which a recovery of less than $100 is demanded in the complaint, but. that, where the recovery is for more than $100, such appeals must be taken to the Appellate Division.

Appeal from City Court of Yonkers.

Action by the Richardson & Boynton Company against Fanny H. Schiff. From an order denying a motion to vacate an order for the examination of defendant before trial, she appeals. Reversed. •

Argued before HIRSCHBERG, P. J., and BARTLETT, JENICS, WOODWARD, and HOOKER, JJ.

Stephen Fraser Thayer, for appellant.

Ralph Earl Prime, Jr., for respondent.

The papers upon which the order for the examination of the defendant before trial was granted fail to show that it was either important or necessary that her testimony should be taken before rather than at the trial. It has so often been held that such a defect is fatal to an order of this character that the citation of authorities on the point is unnecessary.

The respondent objects, however, that this court has no jurisdiction to entertain the appeal. The act of the Legislature regulating appeals from the City Court of Yonkers provides that such appeals shall be heard by the County Court of Westchester county where the judgment is rendered or the order appealed from is made in an action in which a recovery of less than $ioo is demanded in the complaint, but, where a recovery of $ioo or more is demanded, such appeals must be taken to the Appellate Division of the Supreme Court. Laws 1893, p. 873, c. 416, tit. 9, § 1. The complaint in the present action was verified on October 27, 1903. The plaintiff therein demands judgment against the defendant for the sum of $99, with interest thereon from November 8, 1902. It will be perceived that this interest at the legal rate would raise the amount which the plaintiff sought to recover at the time the complaint was verified to a sum in excess of $100. I think the demand was therefore sufficient in amount to give this court jurisdiction of the appeal. Order appealed from reversed, with $10 costs and disbursements.

Order of the City Court of Yonkers reversed, with $10 costs and disbursements, and motion granted, with costs. All concur.