
    James Mongan, Respondent, v. The Lehigh Valley Railroad Co., Appellant.
    (New York Common Pleas
    Additional General Term,
    August, 1895.)
    The fact that, the undertaking was executed before the court had made an order fixing its amount is no reason for denying an application for removal of an action from a District Court to the Court of Common. Pleas. ,
    Appeal from a judgment rendered by the justice of the First Judicial District Court in favor of the plaintiff.
    
      
      Alexander c& Green, for appellant.
    
      T. C. Campbell, for respondent. “
   Bischoff, J.

Plaintiff brought this action to recover for injuries to his property, alleged to have been sustained through defendant’s negligence, and claimed $250.

Upon the return day of the summons defendant moved that the cause he removed to the Court of Common Pleas, and presented an undertaking, theretofore prepared, in the usual form, the sureties, respectively, binding' themselves in the sum of $500. Ho question was raised as to the sufficiency of these sureties, nor as to the form of the undertaking, but the ’justice denied the motion for the reason, as indorsed upon the summons, that “ the same was executed before the court had made its order.” To this ruling the defendant -duly excepted.

In the case of Scherer v. Hopkins, 42 N. Y. St. Repr. 189, this court ruled that such a ground as that assigned by the justice in the case at bar presented no reason for the denial of the motion, the granting of which is made mandatory by the statute if its conditions are fulfilled. Code Civ. Proc. § 3216. See, also, note, 14 N. Y. Supp. 166.

True, in the case cited the justice had gone through the form of “ fixing ” the amount of the undertaking, while such fact does not here appear. ’ .

But the justice’s refusal, for an insufficient reason, to approve the undertaking, by which approval the sum would he “ fixed ” (Scherer v. Hopkins, supra; Dunseith v. Linke, 10 Daly, 363), presents error to be recognized and corrected upon appeal from the judgment. O'Connor v. Moschowitz, 48 How. Pr. 451; People v. Fourth District Court, 13 Civ. Proc. Rep. 137. The undertaking offered was sufficient in amount, since such amount was the greatest which the justice had the power to exact; and it_was not required that the undertaking should be executed by the defendant. Code Civ. Proc. § 3216.

As was done in the Scherer case, we must reverse the judgment and remit the cause to the District Court to be proceeded with as if no- trial or adjournment of the action had taken place after issue joined, with costs of appeal to the appellant.

Giegerich, J., concurs.

. Judgment reversed and cause remitted to the District Court to he proceeded with as if ho trial or adjournment had taken place, with costs.  