Druckenmiller v. Shoninger

8 N.Y.S. 482, 15 Daly 477, 29 N.Y. St. Rep. 142, 1890 N.Y. Misc. LEXIS 1634

Opinion

Larremore, C. J.

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 establish 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 plaintiff’s serving a written complaint, after removal to this court, demandingdamage 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 a court of record. But, if he elect to sue in a dis trict 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.