Vollkommer v. Columbia Paper Bag Co.

On the 22d day of July, 1904, a justice of the Municipal Court of the City of New York, sitting in the Third Judicial District of the borough of Brooklyn, made an order removing this action to the Supreme Court in Kings county. This order was made in the exercise of the authority supposed to be *772vested in said justice by section 3 of the Municipal Court act of New York City. Chapter 580, p. 1490, Laws 1902. But that section had been repealed by the Legislature of 1904 by an act which took effect on the 1st day of June in that year, before the order of removal was made. Chapter 598, pp. 1429, 1430, Laws 1904, §§ 1, 4. The fact of this repeal was doubtless unknown to the Municipal Court justice. The order of removal having thus been made at the instance of the defendant without jurisdiction, the plaintiff asked the Supreme Court to make an order remanding the case to the Municipal Court; but his application for this relief has been denied, apparently on the ground either that he has voluntarily submitted to the jurisdiction of the Supreme Court, or that an order of remand was unnecessary, inasmuch as the order of removal was void.

The facts developed upon the motion do not, in our Opinion, make out a voluntary submission on the part of the plaintiff to the jurisdiction of the Supreme Court, and we think that an order remanding the cause may properly be made, and ought to be made, in order to leave no doubt as to the authority of the Municipal Court to proceed to a trial and determination of the action. We cannot concur with the contention in behalf of the respondent that the plaintiff’s proper remedy was to apply to the Municipal Court to vacate the order of removal, and, if that application had been denied, to appeal therefrom. There is no provision in the Municipal Court act for an appeal from such an order.

The order under review should be reversed, and the plaintiff’s motion granted.

Order reversed, with $10 costs and disbursements, and motion granted, without costs. All concur.