Frankel Associates, Inc. v. Dun & Bradstreet, Inc.
| Decision Date | 03 March 1965 |
| Citation | 257 N.Y.S.2d 555,45 Misc.2d 607 |
| Court | New York Supreme Court |
| Parties | FRANKEL ASSOCIATES, INC., Plaintiff, v. DUN & BRADSTREET, INC., Defendant. |
Nemeroff, Jelline, Danzig & Paley, New York City (Howard J. Levitz, New York City, of counsel), for plaintiff.
White & Case, New York City (Chester Bordeau, New York City, of counsel), for defendant.
The defendant is a Delaware corporation doing business in this State, with an office and place of business in the Borough of Manhattan, City of New York. In the year 1960, the plaintiff instituted this suit in this court to recover the sum of $6,324.90, with interest and costs. At the time when this action was commenced, the jurisdiction of the then City Court of the City of New York was limited to the sum of $6,000 and interest and costs. (Const. Art. 6, § 15). Thereafter, that court's monetary jurisdiction was increased to $10,000 exclusive of interest and costs ; and that is the situation today in respect of the Civil Court of the City of New York, of which the City Court became an integral part by merger with the Municipal Court of the City of New York (Const. Art. 6, §§ 15[a, b] and 35[c]; N.Y.City Civ.Ct.Act, §§ 102, 202, 203 and 205).
The plaintiff seeks, by this application, to remove the action to the Civil Court, stating that the motion is made pursuant to Section 325(a) and (c) of the Civil Practice Law and Rules. The defendant objects to the removal and urges that the statutes relied upon by the plaintiff are not authority for the granting of the relief requested. It may be that the defendant's reading of CPLR 325(a) and (c), specifying 'Grounds for removal', is a correct one if a strict construction be appropriate.
Subdivision (a) provides that:
'Where a mistake was made in the choice of the court in which an action is commenced, the supreme court, upon motion, may remove the action to the proper court, upon such terms as may be just.'
No 'mistake', as that term is generally used (it is presumably said by defendant) was made by the plaintiff in instituting its suit in the Supreme Court. On the other hand, it may be argued that the plaintiff did in fact make a 'mistake' by not suing for $6000 in the first instance, instead of $6,324.90, and thus it could have proceeded directly in the City Court.
Subdivision (c) states that:
'Where it appears that the amount of damages sustained are less than demanded, and a lower court would have had jurisdiction of the action but for the amount of damages demanded, the court in which an action is pending may remove it to the lower court upon reduction of the amount of damages demanded to a sum within the jurisdictional limits of the lower court and upon consent of all parties to the action other than a defendant who has interposed no counterclaim and over whom the lower court would have had jurisdiction if the action had originally been commenced there. * * *'
The defendant has not interposed a counterclaim and, since it has an office for the transaction of business in New York City, and due service of process could have been effectuated therein, the City Court would have had jurisdiction over the defendant if the action had originally been commenced there. (cf. Friedman v. Strand, 203 Misc. 170, 115 N.Y.S.2d 266). But it might be urged by the defendant that it does not appear in the case at bar that the amount of damages is 'less' than was demanded and there has been no 'reduction' of the amount demanded, as required by the statute. On the other hand, it may be contended, on the plaintiff's behalf, that the provisions for 'less' damages and 'reduction' thereof are merely directory and not mandatory.
In my opinion, a rigid interpretation is not called for in the instant circumstances. Indeed, section 104 of the Civil Practice Law and Rules expressly enjoins the courts to see to it that the new statute 'shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding'. There is no question, under existing calendar congestion in the Supreme Court, that the parties will obtain a just, a more speedy and a less expensive determination in the Civil Court.
Justices of the Civil Court are nowadays assigned to preside at the trial of cases in the Supreme Court. (Const. Art. 6, sec. 26[g].) The jurors of the Civil Court are selected from the same panel (Judiciary Law, sec. 607). With the monetary jurisdiction of the Civil Court and the amount sued for here being what they are and the present state of ...
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