Duke v. Caluwaert

Freedman, P. J. The summons, with a copy of the complaint, was personally served on the defendants. On the return day, viz., July 23, 1902, the defendants appeared by attorney and, without being then required to plead, procured an adjournment to July 28, 1902, for the purpose of joining issue and removing the cause. On such adjourned day issue was joined and the cause removed to the City Court. The removal was made by order duly entered and in it the justice who granted the same recited, among other things, that the action is one specified in subdivision T of section 1364 of chapter 466 of the Laws of 1901, involving more than - $250; that the defendants applied, after issue joined therein and before an adjournment had been granted upon their application, to have said action removed into the City Court; that the defendants had given an undertaking in the sum fixed by him pursuant to the statute; and that such undertaking had been duly approved by him. After such removal and on August 2, 1902, the plaintiffs served a reply entitled in the City Court, and on the same day served a demand for a bill of particulars likewise entitled in the City Court. Eight months afterwards, viz., in March, 1903, without having in the meantime made any objection to the form or sufficiency of either the said undertaking or the said order, the plaintiffs made the motion which resulted in the order appealed from. The order was granted on the ground that the order of [625] removal was made after the defendants had asked for and obtained an adjournment, and that it was too late to make such an order, citing 11 Abb. N. C. 124. The statute in force at the time and under which the defendants were required to proceed was section 1366 of chapter 466 of the Laws of 1901 (commonly called the Greater ¡New York charter as amended), and in addition section 3216 of the Code of Civil Procedure. For the purposes of the present case both sections were substantially alike, and they provided that the defendant may, after issue is joined and before an adjournment has been granted upon his application, apply for an order removing the action to the City Court of the city of ¡New York. As to the proper construction of this statutory provision to be applied to a case like the one at bar, no authority can be found which is directly in point, as in all reported cases discussing this provision, where the defendant had procured an adjournment or made some motion necessitating such adjournment, issue had previously been joined. Thus in Dinkel v. Wehle, 11 Abb. N. C. 124, the case relied upon below, the defendant claimed the right of removal after an adjournment had been procured by him, after joinder of issue, and it was held that under section 3216 of the Code it was then too late. In Ives v. Quinn, 7 Misc. Rep. 660, the defendant, after having interposed a general denial, demanded a bill of particulars which necessitated an adjournment to a future day on which he attempted to remove the cause, and it was held that he was too late, because the demand for a bill of particulars was equivalent to an application for adjournment. In Enright v. Franklin Publishing Co., 24 Misc. Rep. 180, it was said: “The motion for removal made on the return day of the summons having been withdrawn, and an adjournment of the trial having been granted upon the request of defendant, the latter had then lost its right to a removal of the cause. § 3216, Code Civ. Pro.; Dinkel v. Wehle, 11 Abb. N. C. 124.” But presumably the defendant in that case, upon the withdrawal of its first application for removal on the return day of the summons, had interposed an answer and then procured an adjournment of the trial. Moreover in all these cases the motion to remove was denied. [626] In the present case issue had not been joined when the adjournment was had; the adjournment .was granted expressly to join issue and remove; upon the adjourned day the motion to remove was made contemporaneously with the filing of the answer; the undertaking met with the approval of the justice and he was satisfied with the application in all other respects, and he thereupon made the order removing the case into the City Court. Upon full consideration of all these matters I am of the opinion that under the language “after issue is joined and, before an adjournment has been granted upon his application ” a defendant waives his right to removal only by obtaining an adjournment after issue joined. The word “and” is a word of addition and signifies that something is to follow in addition to that which precedes. “And ” does not mean “ or.” The wording of the statute evidently means that, after issue joined, when the opportunity for an early trial is at hand, the defendant must not indicate an intention to go to trial, but must at once take the steps necessary to remove. The Municipal Court had jurisdiction of the subject-matter of this action and of the persons of the defendants, and the defendants having answered upon the merits and procured the removal of the action into the City Court upon giving the undertaking required by law are estopped to say that the latter court has not jurisdiction of their persons. Vogel v. Banks, 60 App. Div. 459; Matter of Bingham, 127 N. Y. 296. So the plaintiffs, by serving the reply entitled in the City Court, and a demand for a bill of particulars likewise entitled in that court, submitted to the jurisdiction of said court. Moreover the delay on the part of the plaintiffs of eight months in making the motion to remand, was laches and fatal to the motion. The alleged irregularity in the recitals of the undertaking and the approval thereof can work no different result. The order appealed from should, be reversed, with costs, and the motion to remand denied, with ten dollars costs. Tetjax and Gildebsleeve, J.I., concur. Order reversed, with costs, arid motion denied, with ten dollars costs.