Vail v. Blumenthal

89 N.Y.S. 287

• Court: City of New York Municipal Court
• Decided: March 5, 1903
• Status: Published

Opinion

O’DWYER, J.

In the Municipal Court a written, verified complaint was served, and a written, verified answer interposed thereto. The action was then removed to this court pursuant to section 3, c. 580, p. 1490, Daws 1902. That statute provides that “the defendant may, after issue is joined and before an adjournment * * .* apply * * * for an order removing the action.” Upon the removal of an action from the Municipal Court to this court, the pleadings remain the same, unless amendment thereof be allowed. In this case, after the same had been removed to this court, plaintiff served a written demurrer to the new matter contained in the answer, describing the same as a defense, and to the counterclaim contained in said answer.' The issue of law attempted to be thus joined has been brought on for trial by plaintiff, and defendant objects to a consideration thereof upon the ground that the demurrer was not interposed in the Municipal Court, and that the service thereof, without leave of this court, is improper and of no effect. The objection is sustained. The issue must be joined before the action is removed, and may not be changed. The pleadings in the Municipal Court cannot be amended, except by permission, and then only to the extent allowed in the lower court. The demurrer served herein is an additional pleading, creating a different issue from that joined in the Municipal Court, and is not an amendment with permission of any pleading in that ’court.

Demurrer dismissed, with $10 costs. Settle order hereon on one day’s notice.