Opinion
January 19, 1965
Order, entered on October 23, 1964, granting plaintiff's motion pursuant to CPLR 325, subds. (a) and (b) to transfer the action from the Civil Court, New York County, to the Supreme Court and granting leave to serve an amended complaint, unanimously affirmed, with $30 costs and disbursements to plaintiff-respondent. The action, as originally commenced in the Civil Court, was to recover payments allegedly due under a separation agreement. The accrual of further sums alleged to be due, since the commencement of the action, brought the amount claimed beyond the $10,000 jurisdiction of the Civil Court. It was therefore appropriate to permit plaintiff to seek recovery of the entire amount alleged to be due in a single action in the Supreme Court. The only argument of any substance advanced by appellant is that the transfer of the cause will deprive him of the jurisdictional objection raised in the Civil Court based on his nonresidence. In view of respondent's concession in point III of her brief, that defendant will not be foreclosed from asserting the jurisdictional objection in the Supreme Court, appellant's asserted fears that the transfer will deprive him of that right no longer have any solid foundation. The right to urge the jurisdictional defect will be preserved despite the transfer, and, if eventually sustained, will be effective to undermine the action as transferred.
Concur — Botein, P.J., Valente, McNally, Eager and Staley, JJ.