
    The Department of Health of the City of New York, Appellant, v. Hannah M. Halpin, Respondent.
    (Supreme Court, Appellate Term,
    March, 1903.)
    Municipal Court of the city of New York — Jurisdiction—Construction of L. 1903, ch. 580, § 25 — Removal to proper district.
    Although subdivision 5 of section 25 of the Municipal Court Act (L. 1902, ch. 580) requires an action, for a penalty for a violation of an order of the department of health of the city of New York, to be brought in the court district in which the violation happened, the provisions of subdivision 4 of said section, permitting the action to be tried where brought unless upon or before joinder of issue the defendant demands a transfer to the proper district, lead to the conclusion that jurisdiction is not affected by bringing the action in a district other than the one in which the violation occurred.
    Unless the defendant demands a transfer upon or before joinder of issue the right of removal is lost and the judgment stands.
    Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan, on the 14th of November, 1902, and filed and entered in the office of the clerk of that court on the same day, dismissing the complaint on the ground of lack of jurisdiction.
    
      George L. Rives, Corporation Counsel (Frederick W. Stelle, of counsel), for appellant.
    No appearance for respondent.
   Giegerich, J.

The action was commenced by personal service of the summons on the defendant on the 30th day of September, 1902, and was brought to recover a penalty of $250 from the' defendant for a violation of the order of the board of health, issued to the defendant on the 6th day of August, 1902, directing her to make certain improvements required by the Sanitary Code, on the premises 537 and 539 West One Hundred and Thirty-third street, owned by her.

The defendant did not appear on the return day of the summons or on the trial of the action. The testimony of the inspector showed that at the time of his last inspection of the premises on the 6th day of November, 1902, more than three months after the order was served on the defendant, it had not been complied with.

The only question considered by the court in dismissing the action, was that of the jurisdiction of his court, and the justice held that section 25 of the Municipal Court Act (chapter 580, Laws of 1902), was mandatory, and that the action must be brought in the district where the violation occurred, notwithstanding the fact that the defendant did not appear and ask to have the case removed to that district.

Section 1262 of chapter 466 of the Laws of 1901 provides that whoever violates any order of the board of health shall be guilty of a misdemeanor; and also that any person who shall have done or omitted to do anything which by law or ordinance subjects the party guilty thereof to punishment for a misdemeanor, shall, in addition thereto, be subject to a penalty of $250, to be sued for and recovered by said department in any civil tribunal in said city.

We think that the justice who tried the case erred in holding as he did, and we are also of the opinion that this action could have been properly tried in the Municipal Court, eighth judicial district, notwithstanding the violation did not occur there.

Section 25 of the Municipal Court Act, as in force at the time the action was brought, provides as follows:

Sec. 25. In what district brought.— An action or proceeding
of which the municipal court has jurisdiction must be brought:
“ 1. In a district in which either the plaintiff or defendant or one of the plaintiffs or one of the defendants resides, unless all the plaintiffs or all the defendants reside out of the city of New York, in which case the action or proceeding may be brought in said court in any district.
2. If the defendant be a corporation created by law, in a district in which the plaintiff or either of the plaintiffs resides, or in which (if it be a corporation) it transacts its general business or keeps an office or has an agency established for the transaction of business or is established by law, except the corporation of the city of New York, which may sue or be sued in any district, except as provided for in subdivision five of this section.
“ 3. By plaintiffs not residing in the city of New York, in the district in which the defendant, or one of the defendants resides, and against a defendant or defendants, not residing in "said city, in the district in which the plaintiff or one of the plaintiffs resides;, but where all the parties reside out of said city, the action may be brought in any district. No person who shall have a place in said city for the regular transaction of business shall be deemed a nonresident under the provisions of this act.
“ 4. If the district in which the action or proceeding is brought is not the proper district, the action may, notwithstanding, be tried therein, unless the action is transferred to the proper district before trial upon demand of the defendant made upon or before the joinder of issue in writing or in open court, followed by the consent of the plaintiff, given in like manner, or the order of the court. The demand must specify the district to which defendant requires the action to be transferred. The court must make such order when the district in which the action or proceeding' is brought is not the proper district, as specified in this section or the next one, if such demand be made.
5. All actions by or on behalf of the city of New York .to recover a penalty or fine for a violation of any corporation ordinance, when the amount of such penalty or fine shall not exceed five hundred dollars, must be brought in the district in which the violation of such ordinance happened or occurred. And all actions to recover a penalty or fine for a violation of any provision of the sanitary code or of any regulation of the fire commissioner
' or of any laws or ordinances which either the health or the fire department is authorized, empowered and especially charged to enforce, where the amount of such penalty or fine shall not exceed five hundred dollars, must be brought in the district, in which such violation happened or occurred.”

From this it.appears (subd. 5) that all actions to recover a penalty or a fine for a violation of any provision of the Sanitary Code or of any regulation of the fire commissioner or of any láws or ordinances which either the health or fire department is authorized to enforce where the amount of such penalty or fine shall not exceed $500, must be brought in the district in which such violation happened or occurred.

Subdivision 4, however, provides that if the district in which the action is brought is not the proper district, the action may, notwithstanding, he tried therein unless the action is transferred to the proper district, as specified in that section or the next one, if such demand he made.

As section 26 relates, not to the venue or jurisdiction of the court, but to the manner of commencing an action, it is clear that the words “ this section or the next one ” in the fourth subdivision, refer to the subdivisions of the twenty-fifth section, and not to section 26 of the act. Hence it follows that it was the intention of the Legislature to provide that, if the defendant did not appear and make a demand for the removal of the case to another district where he had been served personally with the summons, to give the court issuing the summons jurisdiction to try the case and to render judgment according to the evidence.

The exceptions stated in subdivisions 4 and 5 indicate that the word “must” in this section is not mandatory in the sense of taking away jurisdiction from a court other than the one specified therein as the place of trial, but it is used simply for. the purpose of giving the defendant who is being sued in a wrong district, the absolute right of removal if he makes his demand at the proper time and in the proper way. If the word “ may ” were' used, instead of the word “ must,” it would leave the question of district entirely at the option of the plaintiff. Obviously, the Legislature intended in using the word “ must ” in this connection, to indicate that a defendant could insist upon the action being transferred to the proper district if it was brought in the wrong one. In order, however, to assert this right he must appear and make the demand, or if he fails to appear his right to removal is lost, and the court where the action is brought has jurisdiction to proceed. Barker v. Archer, 49 App. Div. 80.

The judgment should, therefore, be reversed and a new trial granted in the court below.

Ereedmaw, P. J., and Gildersleeve, J., concur.

Judgment reversed and a new trial granted, with costs to appellant to abide event.  