Opinion
April, 1913.
Samuel Sturtz, for appellant.
William J. McKeown, for respondent.
This is an appeal from an order granting plaintiff's motion to discontinue this action without costs. Issue was joined about December 13, 1912. On December 26, 1912, the plaintiff served a notice of trial and the cause was placed upon the calendar. The action is brought to recover damages sustained by plaintiff through the alleged negligence of the defendant, and the complaint contains allegations to the effect that the plaintiff's injuries were sustained at certain premises owned at the time by the defendant. The answer, inter alia, denies the ownership of the premises, and although the plaintiff asserts that his damages equal the sum of $5,000, a sum beyond the jurisdiction of the City Court, and that he desires to discontinue this action owing to the recent decision in Lewkowicz v. Queen Aeroplane Co., 207 N.Y. 290, it would appear, from the uncontradicted statement of the defendant's attorney in his opposing affidavit used on the motion herein, that the action was sought to be discontinued because it had been brought against the wrong defendant. If that is the real reason the payment of the costs of the action to date should have been imposed. If it is not the reason, chapter 210 of the Laws of 1913, amending section 319 of the Code of Civil Procedure, which provides for the removal of such an action from the City Court to the Supreme Court, affords the plaintiff the requisite relief.
Order modified by requiring as a condition for a discontinuance of the action the payment of the costs to date, and, as modified, affirmed with ten dollars costs and disbursements without prejudice to the plaintiff to move within ten days after the service of a copy of the order entered herewith and notice of entry thereof in the City Court and payment of ten dollars costs and disbursements of this appeal to move in the Supreme Court for an order removing this cause to that court.
GERARD and PAGE, JJ., concur.
Order modified, and, as modified, affirmed.