Opinion
September 19, 1929.
Irving Horowitz, for the plaintiffs.
Nadal, Jones Mowton [ Joseph S. Robinson of counsel], for the defendant.
Motion is made to dismiss the complaint on the ground of lack of jurisdiction, on the authority of Dilworth v. Yellow Taxi Corp. ( 220 A.D. 772). The Dilworth Case ( supra) was decided in the Second Department.
In the First Department, however, in the case of Spetler v. Jogel Realty Company ( 224 A.D. 612) the Appellate Division, in a similar situation as here presented (except that the action was brought in the City Court) held that, although more than $3,000 was demanded in the summons, yet, there being more than one plaintiff, each plaintiff must be considered as bringing a separate complaint, and hence, although the aggregate claim of the plaintiff exceeds $3,000 (the jurisdiction of the City Court) the court retains jurisdiction.
The Municipal Court being a court of record, the Civil Practice Act is applicable, and accordingly, under section 209 of the Civil Practice Act, "All persons may be joined in one action as plaintiffs," etc. It follows, therefore, that section 209 gives this court the same power as it gives to the City Court, and hence, although the demand in the summons exceeds the sum of $1,000, yet the separate plaintiffs must be deemed as making separate complaints, and the court is not ousted of jurisdiction. Motion to dismiss denied.