Hinrichs v. Interurban Street Railway Co.

The sole question involved on this appeal is whether the justice should have made an order removing this cause into the City Court of the city of Hew York.

The action was begun by the service of a summons and a verified complaint on the defendant. On the return day, Hovember 7, 1903, the defendant appeared, entered an oral general denial and proffered an undertaking and order for removal to the Oity Court. The plaintiff objected, and the defendant being in default for failure to file a verified answer, the justice set the case down for immediate inquest. As the plaintiff’s witnesses - were not in court the default of the defendant was noted, and the cause marked for inquest for Hovember 11, 1903. On the morning of that day the defendant, without the plaintiff’s consent or leave of court first had, filed a verified answer. Hpon the call of the cal*655endar on that day the defendant renewed his motion for removal upon the undertaking which had been theretofore filed. This motion was dismissed. Thereupon, on the defendant’s motion, the plaintiff consenting, the cause was adjourned several times, and until November twenty-fifth. At the opening of the trial on that day the motion was renewed, denied and an exception taken. That exception brings up the proceedings for review.

I am of the opinion that the defendant, having suffered default on the return day, was thereafter not in a position to insist upon the removal of the cause.

Section 145, subdivision 2, of the Municipal Court Act provides: “ In all cases where a written complaint, verified or unverified, is served with the summons, a written answer, verified if the complaint be verified * * * must be filed and issue joined on the return day

Section 3 of the same act provides: “the defendant may, after issue is joined and before an adjournment has been granted upon his application, apply to the justice * * * for an order removing the action.”

The defendant, having defaulted in the joining of issue by failing to file a verified answer on or before the return day, forfeited his right to ask for a removal. Reading sections 3 and 145 together, it is incumbent on a defendant to join issue on the return day and to proffer his undertaking before he asks for an adjournment. Where there is a verified complaint there is only one way of joining issue — by the filing of a verified answer. An oral pleading in such a case is ineffectual for any purposes On the return day the defendant was, therefore, in default. It had not joined issue, which was an essential prerequisite to its right of removal. The oral general denial was unavailing and the undertaking was properly rejected. The case was set down for inquest and the defendant, taking advantage of the adjournment to enable the plaintiff to proceed with his proof, filed a Arerified answer before the morning set for the taking of the inquest. This was not joining issue on the return day; it is questionable whether it was joining issue at all. But as no objection was made and the case was tried on the *656pleadings as then before the court, issue must, for the purposes -of this appeal, be taken as joined on that day. This joining of issue, however, did not revive the defendant’s right to insist on a removal. It had suffered default; it was before the court as a matter of favor; its ability to interpose any defense was the result of the adjournment, which, while not had at its request, resulted in its benefit. Had the inquest been taken on the return day and had the defendant thereafter moved to open the default the subsequent interposition of an answer would not have revived the right to have a removal. No greater right arose because the taking of the inquest was postponed. The entire spirit and intent of the sections involved are to require promptness on the part of a defendant. He must be guilty of no affirmative act to delay the case. He must join issue on the return day. He must ask for no adjournments. He cannot invoke the favor of the court for the purpose of ■ depriving it of jurisdiction.

The motion was properly denied and as the record presents no other question for review, the judgment must be affirmed, with costs.

Freedman-, P. J., and Greenbaum, J., concur.

Judgment affirmed, with costs.