Murdock v. New York Truck Renting Corp.

Appellate Division of the Supreme Court of New York

Murdock v. New York Truck Renting Corp.

3 A.D.2d 406, 160 N.Y.S.2d 984, 1957 N.Y. App. Div. LEXIS 5913

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 9, 1957

StatusPublished

Cited by1 cases

This text of 3 A.D.2d 406 (Murdock v. New York Truck Renting Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Murdock v. New York Truck Renting Corp., 3 A.D.2d 406, 160 N.Y.S.2d 984, 1957 N.Y. App. Div. LEXIS 5913 (N.Y. Ct. App. 1957).

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Opinion

Per Curiam.

This action for personal injuries grounded in negligence was instituted in the City Court, New York County, and noticed for trial for the September, 1952 Term of that court. On February 11, 1955, on plaintiff’s application, the action was moved to the Supreme Court and the plaintiff permitted to increase her demand for damages to $87,500. This order directed the clerk of the Supreme Court to place the action on the Personal Injury Jury Calendar of that court upon filing of a note of issue and payment of fees.

[407]*407The subject of this appeal is the denial by Trial Term of plaintiff’s subsequent application to place the action on the Tort Jury Calendar of the Supreme Court for the same term for which it had been noticed in the City Court, viz., the September, 1952 Term.

Subdivision 3 of section 110-a of the Civil Practice Act applies and it provides that after transfer of all papers and records in the action to the court to which the same has been ordered remanded, ‘ ‘ the action or proceeding shall continue in such court as if originally instituted therein.”

We construe this language to be mandatory and conferring no discretion in the matter. (See Thompson v. Yellow Taxi Corp., 243 App. Div. 282; Matter of Sensale v. Kashowitz, 246 App. Div. 539; Lopez v. Wirzberger, 5 Misc 2d 8.)

' Since no condition of the nature inherent in the order appealed from was attached to the order of transfer, the plaintiff is entitled to have her action placed on the Personal Injury Jury Calendar- of the Supreme Court, New York County, with the issues noticed for the September Term, 1952, the same term for which the action was originally noticed in the City Court. The order appealed from should be reversed, and the motion granted, with costs to appellant. Settle order.

Breitel, J. P., Botein, Rabin, Valente and McNally, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted* Settle order on notice.

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Per Curiam.

This action for personal injuries grounded in negligence was instituted in the City Court, New York County, and noticed for trial for the September, 1952 Term of that court. On February 11, 1955, on plaintiff’s application, the action was moved to the Supreme Court and the plaintiff permitted to increase her demand for damages to $87,500. This order directed the clerk of the Supreme Court to place the action on the Personal Injury Jury Calendar of that court upon filing of a note of issue and payment of fees.

[407]*407The subject of this appeal is the denial by Trial Term of plaintiff’s subsequent application to place the action on the Tort Jury Calendar of the Supreme Court for the same term for which it had been noticed in the City Court, viz., the September, 1952 Term.

Subdivision 3 of section 110-a of the Civil Practice Act applies and it provides that after transfer of all papers and records in the action to the court to which the same has been ordered remanded, ‘ ‘ the action or proceeding shall continue in such court as if originally instituted therein.”

We construe this language to be mandatory and conferring no discretion in the matter. (See Thompson v. Yellow Taxi Corp., 243 App. Div. 282; Matter of Sensale v. Kashowitz, 246 App. Div. 539; Lopez v. Wirzberger, 5 Misc 2d 8.)

' Since no condition of the nature inherent in the order appealed from was attached to the order of transfer, the plaintiff is entitled to have her action placed on the Personal Injury Jury Calendar- of the Supreme Court, New York County, with the issues noticed for the September Term, 1952, the same term for which the action was originally noticed in the City Court. The order appealed from should be reversed, and the motion granted, with costs to appellant. Settle order.

Breitel, J. P., Botein, Rabin, Valente and McNally, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted* Settle order on notice.

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3 A.D.2d 406, 160 N.Y.S.2d 984, 1957 N.Y. App. Div. LEXIS 5913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murdock-v-new-york-truck-renting-corp-nyappdiv-1957.

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