Pomerantz v. Sroka

MacLean, J.

According to the return, issue was joined herein on August 21, 1906; and the canse, twice adjourned, was heard on September 19, 1906. The plaintiff was called; and, after he had testified to his residence, counsel for the defendant moved to transfer the cause to the proper district. This was denied and an exception taken. “As it frequently occurs in the Municipal Court that issue is joined in open court, not in writing or by written pleadings, the proper construction of that section (Mun. Ct. Act, § 25, subd. 4) is that the defendant must demand that the change of the place of trial be made upon or before joinder of issue in writing, or upon or before joinder of issue in open court.” Fischer v. Brooklyn Heights R. Co., 84 N. Y. Supp. 254, 256. This the defendant did not do, and he also failed to specify the district to which the transfer was requested to be made. The judgment should be affirmed, with costs.

Gildersleeve and Amend, JJ., concur.

Judgment affirmed, with costs.