Suydam v. Metropolitan St. Railway Co.

56 N.Y.S. 1117

• Court: City of New York Municipal Court
• Decided: March 6, 1899
• Status: Published

Opinion

SCHUCHMAN, J.

The action was brought by one Elizabeth Suydam, as plaintiff, against the Metropolitan Street-Railway Company and John Scullan, as defendants, in the sum of $500. On the return day of the summons both defendants appeared by separate attorneys; but the record does not show that either of them joined issue, except that the order of removal recites, that the defendant the Metropolitan Street-Railway Company appeared and joined issue. Tim notice of the motion to remand, and the order .entered on the decision of that motion (being the order appealed from), recite the affidavit of M. A. Lesser,'the plaintiff’s attorney, and all the papers, pleadings, and proceedings in the action, as the papers on which said motion wds founded and said order made; but no pleading whatever-is contained in the appeal book. The justice' who made the order appealed from, in his memorandum of decision of the motion, says: “Where, as in this action, two defendants are sued and served, and both appear and answer-separately, and by different attorneys, the cause may not be removed to this court upon the application of one of the defendants. All the defendants answering must join in the application.” But there is no proof whatever that the defendant Scullan answered or joined issue. Upon such an imperfect record, not containing the contents-of any pleading in the action, thereby not enabling the court to see whether the cause of' action is one on which the two defendants are liable jointly or severally, nor showing that the-defendant Scullan joined any issue herein, we are asked to pass upon the question (and thereby establish a precedent, both litigants admitting there is none) whether, under section 1306 of the-Laws of 1897 (Charter of Greater New York), reading as follows: “In an action [brought in a municipal court] where the damages as stated; in the complaint exceed $250, the defendant may, after issue is joined, apply to the justice for an, order removing the action,” one defendant can remove a case from the municipal court to this, court, or whether all the defendants must join in the removal proceeding. We are unable to do-so, so as to prevent injustice being done to one or the other of the litigants herein. Justice Daly, in Field v. Talcott, 4 Law Bul. 22, says: “There is no statutory provision authorizing such, an order to remand a cause, but the common-law powers of the court are ample to dispose of cases brought before it in such a way as to prevent injustice and delay.” Order appealed from is reversed, with $10 costs and disbursements to appellant, and the motion to remand the case is denied, without costs, with leave to respondent to renew said motion on a more complete record. All concur.