Campbell v. Butler , 4 Abb. Pr. 55 ( 1856 )

Clerke, J.

—This is a motion to remove into this court a cause pending in the Superior Court, and commenced by the service of summons upon the. defendant in the city of New-York.

Section 33 of the Code declares that the jurisdiction of the Superior Court shall extend to such actions as the present, where the defendant is personally served with the summons in the city of New-York. It is evident, therefore, that the Superior Court has jurisdiction in the present case, and, notwithstanding the provisions of section 125, may proceed to the trial of the cause, unless this court shall direct the removal of the action, as desired by the defendant.

Subdivision 2 of section 33 of the Code provides that “ the Supreme Court may remove into that court any action brought under this subdivision, and pending in the Superior Court or Court of Common Pleas for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the Supreme Court; such order for removal and for change of place of trial to be ordered upon motion,” &c. It is contended that under this provision the defendant is entitled to claim the removal as matter of right. I think it very clear, however,- that the power conferred rests entirely in the discretion of the court; and that the removal should not be ordered, unless, upon the facts shown, the court can see good cause for directing it.

As I do not think that the facts shown are such as to make it appear that a change in the place of trial is desirable, the motion is denied, with ten dollars costs to plaintiff to abide the event; but without prejudice to defendant’s right to renew the motion upon the ground of convenience of witnesses, or the like.