
    Isaac Lesser, Respondent, v. Solomon Adolph, Appellant.
    (Supreme Court, Appellate Term,
    January, 1905.)
    Municipal Court Act — Section 326 — Appeal — Section 13 — Transfer of cause — Objection not raised below.'
    Where in an action to recover the amount deposited upon the making of an oral contract for the sale of certain real estate, the evidence, though conflicting, is sufficient to establish the falsity of defendant’s statement in relation to the dimensions of the property, this court under section 326 of the Municipal Court Act will not disturb a judgment for plaintiff because of erroneous rulings in the admission or exclusion 'of testimony, particularly in relation to the ownership of the property.
    Section 13 of the Municipal Court Act, requiring a justice, who is disqualified to try a cause, to transfer it to an adjoining district is mandatory.
    Where it appears that an action, brought in the Municipal Court and transferred to a district not adjoining because of the disqualification of the justice, was brought in the proper district and no appeal is taken from an order denying defendant’s motion to further transfer the cause, not to the district adjoining the one in which the action had been brought but to the district in which defendant resided, the objection, that the district to which the transfer was made did not adjoin the district in which the action was brought, was waived'and could not be raised for the first time on appeal from a judgment in favor of plaintiff.
    
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, seventh district, borough of Manhattan.
    Joseph Gans, for appellant.
    Brinn & Greenberg, for respondent.
    
      
       See Baylies’ New Tr. & App. (2d ed.) 332. In Cleveland v. Chamberlain, 64 Ga. 359, Ch. J. Bleckley said: “The point appears here in its virgin state wearing all its maiden blushes and is therefore out of place".
    
   MacLean, J.

The plaintiff complained for fraud and deceit, and the defendant answered with a general denial and a demand for particulars. The pleadings were oral. The particulars furnished declare that on or about April 17,1904, the defendant represented that he was the owner of certain property, and that it was twenty-five feet, six inches in width and one hundred feet in length; that the statement was false to the knowledge of the defendant and made for the purpose of inducing the plaintiff to purchase the property; and that the plaintiff in reliance thereon paid to the defendant the sum of $332.33 as a deposit for the entering into a contract.” At the trial it was conceded that the dimensions of the property in question are “ 25 feet in width by 94.85 in depth and 25.26 by 91.24 on the other side,— an irregular lot.” In view of this concession of dimensions and of sufficient evidence, though conflicting, of the making of the statement in relation thereto, the judgment entered upon the verdict in favor of the plaintiff should not, because of some error in either the admission or exclusion of evidence, particularly in relation to ownership, be disturbed, more especially, however, in view of plaintiff’s exhibit A, which was treated as a contract between the parties, instead of a receipt, containing no agreement, and so not enforceable under the statute (Filkins v. Whyland, 24 N. Y. 338, and Coe v. Tough, 116 id. 273) ; and further, if contract instead of receipt, it lacked subscription by the plaintiff within the meaning of the statute and of the decision of James v. Patten, 6 N. Y. 9, and so may not be enforced. Wherefore the plaintiff is entitled to the sum deposited by him with the defendant, and the justice of the case demands that the judgment should be affirmed, for the merits of the cause are with the plaintiff. Mun. Ct. Act., § 326.

It is contended, however, not that the district in which this action was brought, but that the district to which it was transferred, was not the proper district, and that, therefore, the justice who tried the cause was without jurisdiction. It appears that the transfer was made because of disqualification, and under section 13 of the Municipal Court Act it was mandatory upon the justice disqualified to transfer the cause to an adjoining district. ” True, this was not done, but no objection therefor was raised until this appeal. The only objection appearing, if objection it may be called, was the motion before trial in the court to which the cause had been transferred for further transfer — not to the district adjoining the district in which the cause had been brought, but to the district in which the defendant lived. This was denied, but from the order entered no appeal appears to have been taken or protest lodged at the trial as was the case in Heller v. Herbst, 26 Misc. Rep. 780. The defendant must be deemed to have waived what he now objects to for it does not appear that the district in which the action was brought was not the proper district, and the application for transfer under subdivision 4 of section 25 of the Municipal Court Act was, therefore, without right, and the original district being proper, so was the court.

Scott and Davis, JJ., concur.

Judgment affirmed, with costa.  