Opinion
October 1, 1954.
Present — Vaughan, J.P., Kimball, Piper, Wheeler and Van Duser, JJ.
Order of the Onondaga County Court modified so as to provide for a dismissal of the action unless within ten days after service of a copy of the order herein plaintiff moves, pursuant to section 110 of the Civil Practice Act, for the removal of the action to the Supreme Court, and as modified affirmed, and order of the Onondaga Special Term reversed on the law and facts, with $10 costs and disbursements to the plaintiff-appellant, and motion granted, with $10 costs. Memorandum: The Municipal Court of the City of Syracuse lacked jurisdiction to determine the issues in this action. ( Gigliotti v. Jacksina, 206 App. Div. 368. ) Failure to grant defendants' motion to dismiss in the Municipal Court was error. On appeal to the County Court of Onondaga County, from such denial, an order of reversal was properly directed. In our judgment, however, that court should have directed such a dismissal to have been conditioned upon a motion under section 110 of the Civil Practice Act to remove the action to Supreme Court on the ground that a mistake had been made in bringing the action in Municipal Court. The record shows the decision of the County Court to have been made under date of March 2, 1954. The order authorized thereby was not entered until March 20, 1954. A motion under section 110 of the Civil Practice Act to remove the action to Supreme Court was made and argued on March 15, 1954. The action had, therefore, at that time not been dismissed and was still pending in the Municipal Court. Such motion should, therefore, have been granted by the Supreme Court and the action ordered removed to Supreme Court in accordance with the provisions of said section 110 of the Civil Practice Act. (See 1 Carmody-Waite, Cyclopedia of N.Y. Practice, p. 195; Luther v. Silver, 130 Misc. 21; Mitchell v. Maynard, 32 N.Y.S.2d 496; Beadle v. County of Orleans, 148 Misc. 302; Margies v. Clyde S.S. Co., 165 App. Div. 33.) We therefore reach the conclusion that the order of the County Court should be modified so as to provide for a dismissal of the action, unless such a motion is made pursuant to the provisions of section 110 of the Civil Practice Act within a therein to be designated time (see Marcus v. Bader, 156 Misc. 730), and the order of the Supreme Court reversed and the motion granted. All concur. (Appeal from an order of Onondaga County Court, reversing an order of Syracuse Municipal Court, which held the Municipal Court had jurisdiction, and dismissing plaintiff's complaint in an action to recover triple damages, attorneys' fees, etc., for an overcharge of rent; also appeal from an order of Onondaga Special Term, denying plaintiff's motion to remove the action pending in Syracuse Municipal Court to the Supreme Court as the proper court.)