Opinion
September 25, 1934.
Koenig, Siskind Drabkin, for the plaintiff, respondent.
Walter D. Wile, for the executors, defendants, petitioners.
The pendency in the City Court of the City of New York, New York county, of an action to recover a sum less than $3,000 is the sole bar to the completion of the administration of this estate. The action in the City Court is one "at law" as such term is generally understood. Both parties are desirous of an early trial of the action. The jury fee of eighteen dollars in the City Court has been paid and the plaintiff in that action has established, therefore, a right to trial by jury there. By the terms of the recent addition to the Civil Practice Act of section 190-a (Laws of 1934, chap. 352) any party to an action transferred to this court may demand of right a jury trial in this court if at the time of the transfer the party was entitled to a jury trial under the practice of the court from which the transfer is made. The jury trial fee in this court is twenty dollars. The administrator seeks the transfer. Jury fees in each court are payable into the city treasury. The appropriate practice in the situation outlined is to require the balance of the jury fee payable in this court to be paid by the party seeking the transfer. The disbursement constitutes in the instant case a proper administration expense.
For the reason that the court deems the speedy trial and determination of such action in this court necessary to the completion of the administration of this estate, the application is granted and an order will be made transferring the action now pending in the City Court of the City of New York, New York county, for trial during the October trial term of this court.
Submit on notice order directing such transfer conditioned upon the payment of the additional jury fee by the moving party. Such order should provide for placing the action upon the calendar to be tried during the October term.