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

86 Misc. 19, 148 N.Y.S. 178

Opinion

Guy, J.

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 plaintiff’s favor for $402 damages, besides eogts, 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 fifteenth, the same day on which the appeal from the judgment was taken.

Under the present Municipal Court Act a demurrer is a pleading. Mun. Ct. 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 (Mun. Ct. Act, § 25), not after the pleadings have been amended upon applicant’s request.

An order denying an application to transfer a cause is not appealable. Pascocello v. Brooklyn Heights R. R. Co., 26 Misc. Rep. 412; Nolte v. Seymour, 127 App. Div. 178, 179; Watson v. Duryea, 133 id. 233.

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; Schiller v. Hardenburg, 52 id. 484, 485.

Bijur and Pendleton, JJ., concur.

Appeal dismissed, with ten dollars costs.