Murdock v. New York Truck Renting Corp.

Full title: IRENE MURDOCK, Appellant, v. NEW YORK TRUCK RENTING CORP. et al.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 9, 1957

3 A.D.2d 406 (N.Y. App. Div. 1957)

160 N.Y.S.2d 984

Opinion

April 9, 1957.

Appeal from the Supreme Court, New York County, WILLIAM C. HECHT, JR., J.

David Bromberg of counsel ( Archibald Bromsen, attorney), for appellant.

Garvey Conway for respondents.

Per Curiam.

This action for personal injuries grounded in negligence was instituted in the City Court, New York County, and noticed for trial for the September, 1952 Term of that court. On February 11, 1955, on plaintiff's application, the action was moved to the Supreme Court and the plaintiff permitted to increase her demand for damages to $87,500. This order directed the clerk of the Supreme Court to place the action on the Personal Injury Jury Calendar of that court upon filing of a note of issue and payment of fees.

The subject of this appeal is the denial by Trial Term of plaintiff's subsequent application to place the action on the Tort Jury Calendar of the Supreme Court for the same term for which it had been noticed in the City Court, viz., the September, 1952 Term.

Subdivision 3 of section 110-a of the Civil Practice Act applies and it provides that after transfer of all papers and records in the action to the court to which the same has been ordered remanded, "the action or proceeding shall continue in such court as if originally instituted therein."

We construe this language to be mandatory and conferring no discretion in the matter. (See Thompson v. Yellow Taxi Corp., 243 App. Div. 282; Matter of Sensale v. Kashowitz, 246 App. Div. 539; Lopez v. Wirzberger, 5 Misc.2d 8.)

Since no condition of the nature inherent in the order appealed from was attached to the order of transfer, the plaintiff is entitled to have her action placed on the Personal Injury Jury Calendar of the Supreme Court, New York County, with the issues noticed for the September Term, 1952, the same term for which the action was originally noticed in the City Court. The order appealed from should be reversed, and the motion granted, with costs to appellant. Settle order.

BREITEL, J.P., BOTEIN, RABIN, VALENTE and McNALLY, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion granted. Settle order on notice.