Schlang v. Presbyterian Hospital

Samuel M. Gold, J. Motion by defendant-third-party plaintiff [Schlang] to remove an action now pending in the Municipal Court to this court pursuant to section 110-a of the Civil Practice Act, and to amend the third-party complaint. The action in the Municipal Court is based on the failure of the defendant to pay a hospital bill. Defendant, in turn, impleaded the third-party defendant [Associated Hospital Service of New York] alleging the existence of a contract pur [486] snant to which the third party was obligated to provide hospitalization. In defense, the contract is admitted but liability denied because of a certain exclusion clause in the contract. Section 110-a of the Civil Practice Act provides for removal where a question as to the title to real property was raised in a court which has no jurisdiction to decide such questions or where the amount of damages turned out to be greater than the power of the court to award. Section 110-a affects procedure only and creates no now right of action. The defendant-third-party plaintiff seeks in the instant motion to remove the action to this court for the purpose of amending the third-party complaint so as to allege an action for a declaratory judgment, accounting, injunction and the other relief in behalf of himself and in a representative capacity on behalf of all such subscribers similarly interested. The relief herein does not come within the purview of section 110-a of the Civil Practice Act. The objection raised is that a different type of complaint should have been alleged in the third-party proceeding even though the third-party complaint therein would be sufficient to fully determine the issue between the parties thereto. (Matter of Yaras [City of Albany], 283 App. Div. 214, affd. 308 N. Y. 864.) The Municipal Court has jurisdiction of the action pending therein. Accordingly, the motion to remove is denied.