Mulligan v. Cox , 56 N.Y.S. 796 ( 1899 )

Gildersleeve, J.

A proceeding, entitled as above, was brought to dispossess the tenant Cox for failure to pay rent. The property affected is situated on the corner of Third avenue and One Hundred and Seventy-seventh street; and, prior to the Greater New York charter, it was in the jurisdiction of the District Court in the city of New York for the tenth judicial district, where the proceedings were duly begun in December, 1891. A trial was had, decision rendered, appeal taken, and decision reversed. In the meantime the District Courts had been abolished by the new charter and the proceeding was remitted to the Municipal Court of said city of New York for the second district of The Bronx, as the successor of the Tenth District Court. The case was again called for trial, and happened to come before a justice disqualified to preside, on account of interest in the matter, and it was, therefore, transferred for trial to the first district of The Bronx, which was the adjoining district. From the final order made upon the trial had in said first district, an appeal was taken to this court, and a motion was made to strike the cause from the calendar and dismiss the appeal. It is contended by the respondent that this appeal is improperly taken, and that the Supreme Court of this department has no jurisdiction, for the reason that the appeal rightfully belongs to the Second Judicial Department, county of Westchester. We think the appeal was properly taken, and should be heard in this department. The proceeding was brought in this department, and necessarily so brought, for the reason that the property affected is located within its limits. The proper appellate tribunal is determined by the locus of the inception of the action or proceeding, and not by the place where it is tried. Section 1367 of the charter of the city of New York, regulating appeals from the Municipal Courts, controls this question. It provides that an appeal from a judgment, rendered in the Municipal Court of the city of New York, may he taken to the Supreme Court, in the cases and in the manner prescribed in articles I and II of title VIII of chapter XIX of the Code of Civil Procedure. Such appeal shall be heard in the manner and by such justice or justices as the Appellate Division of the Supreme Court in the judicial department, embracing the district wherein the action is brought, shall direct.” The motion to dismiss the appeal, therefore, must be denied, with $10 costs.

Beekman, P. J., and Giegerich, J., concur.

Motion denied, with $10 costs.