T. Blumenthal & Co. v. Theo. Tiedemann & Sons, Inc.

118 Misc. 560

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1922
• Status: Published

Opinion

Guy, J.

This action is to recover $1,702.75 damages for breach of warranty upon a sale and delivery of goods by defendant to plaintiff. Within a few days after the service of the summons herein the defendant brought an action against the plaintiff in the Municipal Court of the city of New York to recover $957.21 for the purchase price of the same goods. The defendant in the Municipal Court action (the plaintiff in this City Court action) in its answer sets up as a defense and counterclaim the breach of warranty relied upon as a cause of action herein. After the notice of trial was served by plaintiff in the Municipal Court action the plaintiff in this action applied to the City Court for an order removing the action from the Municipal Court and consolidating both actions in the City Court, and from the order granting the motion the defendant in this action appeals.

The power to remove and consolidate actions depends upon the jurisdiction of the court seeking to exercise the power, and it is not inherent even in a court of general jurisdiction. It exists only by virtue of statute. Miller v. Baillard, 124 App. Div. 555. ‘This is particularly true in the case of the City Court of the city of New York, which is a local court of limited jurisdiction. Lewkowicz v. Queen Aeroplane Co., 154 App. Div. 142; affd., 207 N. Y. 290. The purpose of sections 817 and 818 of the Code of Civil Procedure (Civil Practice Act, §§ 96, 97), relied upon by the respondent in connection with section 3347 of the Code (Civil Practice Act, § 1572), in support of the theory upon which the order appealed from is based, is to prevent a plaintiff from harassing a defendant by prosecuting different suits for causes of action which could be joined. Miller v. Baillard, supra.

The respondent has failed to call our attention to any express statutory provision which warrants the order appealed from. It is true that prior to the adoption of the Municipal Court Code and the raising of the status of that court to that of a court of record the power was given to the City Court on the filing of an undertaking by the party seeking leave, to remove a case from the Municipal Court to the City Court and consolidate it with another action between the parties pending in the City Court (Curley v. F. & M. Schaefer Brewing Co., 35 Misc. Rep. 131), but the power thus conferred by the statute no longer exists, and the provisions of sections 96, 97 and 1572 of the Civil Practice Act do not seem broad enough to confer the jurisdiction assumed in this case of removing an action pending in one court of record — the Municipal Court — to another court of record not the Supreme Court.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Whitaker and Martin, JJ., concur.

Order reversed.