97 Misc. 423 | N.Y. App. Term. | 1916
The notice of appeal herein brings up for review an order denying the defendant’s motion to transfer the trial of the action from the first district, borough of Manhattan, to the sixth district, borough of Brooklyn. At the joinder of issue the defendant filed a demand and a statement of the facts under oath in accordance with the provisions of section 17 of the Municipal Court Code, and asked for the transfer of the action. The' affidavit of the defendant was undisputed, and-showed that the plaintiff resided in Brooklyn, and that the defendant resided in the sixth district in Brooklyn. Notwithstanding this, the court below denied his motion for a transfer of the action. Section 17 of the Municipal Court Code provides that an action ‘ ‘ must be brought in a district in which either the plaintiff or the defendant resides or one of the plaintiffs or one of the defendants resides unless all the plaintiffs and all the defendants reside out of the city of New York.” The undisputed fact that neither party resided in the first district, borough
If the Municipal Court Code permitted an appeal from an order “ where it affects a substantial right,” as provided in section 1347 of the Code of Civil Procedure, instead of limiting a review of such an order as this to an appeal from the judgment (Mun. Ct. Code, § 154), the necessity and expense of a new trial might have been avoided.
Judgment and order reversed and a new trial ordered in the sixth district, borough of Brooklyn, with thirty dollars costs to appellant to abide the event.
Present: Guy, Bijur and Shearn, JJ.
Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.
