Richardson & Boynton Co. v. Schiff

93 A.D. 368, 87 N.Y.S. 672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1904
• Status: Published

Opinion

Willard Bartlett, J.:

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 $100 is demanded in the complaint, but where a recovery of $100 or more is demanded, such appeals may be.taken to the Second Department of the Appellate Division of the Supreme Court. (Laws of 1893, chap. 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.

The order appealed from should be reversed, with ten dollars costs and disbursements.

All concurred.

Order of the City Court of Yonkers reversed, with ten dollars costs, and disbursements, and motion granted, with costs.