Zeimer v. Stearns — 69 N.Y. St. Rep. 376

Majority

p. 376

Henry Zeimer, Resp’t, v. Herman Stearns et al., App’lts.

(New York Common Pleas, General Term,

Filed August 22, 1895.)

Headnote

Appeal—Removal of action—Refusal.

A refusal to remove an action from the district court to the common-pleas, under section 3316 of the Code, will not be reviewed, where it does-, not appear when the application was made.

Appeal from a judgment in favor of plaintiff.

Henry Manne, for app’lts; Herman Fox, for resp’t. •

In this action plaintiff claimed and recovered the sum of $100 as compensation under a contract whereby, for such consideration, he had agreed to obtain a lease of a certain portion of a store for the defendants. The evidence which appears in support of the judgment establishes the fact that the contract in question had actually been entered into, and that there had been due performance upon the plaintiff’s part. It was also shown that the defendants had refused the plaintiff’s demand for payment under the agreement. Upon the mere conflict of evidence presented by the defendants’ denial of the plaintiff’s testimony the jury’s verdict must conclude under the well-settled rule, and the record would not justify our holding that the defendants were prejudiced by the determination reached upon the facts. By stipulation of counsel we are advised that the justice, after having heard the evidence adduced, and within eight days following the termination of a former trial of the action, ordered a trial before a jury, the record of which is the one submitted to-us. Appellants’ contention that the justice’s direction of the jury trial was unwarranted must be due to some oversight. Section. 1872 of the consolidation act (chapter 410, Laws 1882, as amended-by chapter 878, Laws 1891) expressly authorizes the practice followed by the court below. - We are further advised by the stipulation that the justice refused an application on the defendants’ part for' removal of the cause to the court of common pleas for trial, and that the ground of such refusal was that the damages claimed did not exceed $100, the plaintiff’s claim being for $100, “with interest.’’ The stipulation and the record, however, are.

p. 377

silent with reference to everything tending to show that the application was made after issue was joined, as required by the Code of Civil Procedure (section 3216) and section 1287 of the consolidation act (chapter 410, Laws 1882). Hence, assuming that the ground assigned for the justice’s refusal was error, we are without facts from which to conclude that the application for such removal should have been granted, and so that the error was-prejudicial to the defendants.

Judgment affirmed, with costs.