
    John Margies, Respondent, v. Clyde Steamship Company, Appellant.
    First Department,
    November 20, 1914.
    New York city—jurisdiction of City Court — removal of cause from City Court to Supreme Court.
    Where in an action commenced in the City Court of New York when the jurisdiction of that court was $5,000, a trial had been had and the recovery had.been confined to $2,000, it having been decided after the commencement of the action and before the trial that the act purporting to increase the jurisdiction of the City Court to $5,000 was unconstitutional and void, and at the time of the trial of the action and the recovery of judgment for the limited amount, there was no authority for transferring the action from the City Court to the Supreme Court, and shortly thereafter section 319a of the Code of Civil Procedure was enacted, authorizing the transfer of causes from the City Court to the Supreme Court, the defendant in appealing and seeking a reversal of the judgment took the risk of having the case transferred to the Supreme Court and having the limitation of the amount of the recovery eliminated in the event that it succeeded, as it did, in, having the judgment vacated and a new trial granted.
    
      Appeal by the defendant, Clyde Steamship Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of October, 1914, granting plaintiff’s motion to remove the action from the City Court of the City of New York to the Supreme Court of the State of New York.
    
      Wharton Poor, for the appellant.
    H. G. McDowell, for the respondent.
   Laughlin, J.:

This is an action to recover $5,000 for personal injuries alleged to have been caused by the negligence of the defendant. It was commenced in the City Court before chapter 569 of the Laws of 1911 (amdg." Code Civ. Proc. §§ 315, 316), which purported to increase the jurisdiction of that court to $5,000, had been declared unconstitutional and void (See Lewkowicz v. Queen Aeroplane Co., 154 App. Div. 142; affd., 207 N. Y. 290); but the action was tried in the City Court on February 21, 1913, which was after the decision. The trial court confined the recovery to $2,000 and the plaintiff recovered a verdict for that amount, upon which judgment was entered on the 3d day of March, 1913.

At that time there was no authority for transferring the action from the City Court to the Supreme Court, and the plaintiff’s only course was to proceed in the court of limited jurisdiction or subject himself to costs, and possibly to the defense of the Statute of Limitations, if he applied for a discontinuance or submitted to a nonsuit. Shortly after the entry of the judgment and on the 4th of April, 1913, the Legislature enacted chapter 210 of the Laws of that year, which added section 319a to the Code of Civil Procedure, authorizing the transfer of causes from the City Court to the Supreme Court. In the meantime the defendant had appealed to the Appellate Term, and, on affirmance there, an appeal was taken to this court, and on the 1st day of May, 1914, we reversed the judgment and granted a new trial. (162 App. Div. 140.)

We are of opinion that the defendant in appealing and seeking a reversal of the judgment took the risk of having the case transferred to the Supreme Court, and having the limitation of the amount of the recovery eliminated in the event that it succeeded, as it did, in having the judgment vacated and a new trial granted. We had occasion to consider the validity and effect of the statute authorizing the transfer of cases from the City Court to the Supreme Court in Siegel v. Corvan Co. (157 App. Div. 423) and we construed and sustained it, hut we did not then construe it with respect to the point now presented for decision. We have no doubt, however, that it was competent for the Legislature to authorize the transfer of a cause in the circumstances presented by this appeal and we think it has done so.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order affirmed, with ten doHars costs and disbursements.  