
    In the Matter of Maurice Schlang, on Behalf of Himself and All Others Similarly Situated, Petitioner, against Presbyterian Hospital in the City of New York et al., Respondents.
    Supreme Court, Special Term, New York County,
    May 22, 1959.
    
      Gallop, Climenko & Gould (Martin I. Shelton and Martin London of counsel), for petitioner.
    
      Be Forest, Elder & Mulreavy for Presbyterian Hospital in the City of New York, respondent.
    
      Breed, Abbott & Morgan (John J. Shurtleff and Clifford B. Storms of counsel), for Associated Hospital Service of New York, respondent.
   Samuel M. Gold, J.

Motion by defendant-third-party plaintiff [Schlang] to remove an action now pending in the Municipal Court to this court pursuant to section 110-a of the Civil Practice Act, and to amend the third-party complaint.

The action in the Municipal Court is based on the failure of the defendant to pay a hospital bill. Defendant, in turn, impleaded the third-party defendant [Associated Hospital Service of New York] alleging the existence of a contract pursnant to which the third party was obligated to provide hospitalization. In defense, the contract is admitted but liability denied because of a certain exclusion clause in the contract.

Section 110-a of the Civil Practice Act provides for removal where a question as to the title to real property was raised in a court which has no jurisdiction to decide such questions or where the amount of damages turned out to be greater than the power of the court to award.

Section 110-a affects procedure only and creates no now right of action.

The defendant-third-party plaintiff seeks in the instant motion to remove the action to this court for the purpose of amending the third-party complaint so as to allege an action for a declaratory judgment, accounting, injunction and the other relief in behalf of himself and in a representative capacity on behalf of all such subscribers similarly interested.

The relief herein does not come within the purview of section 110-a of the Civil Practice Act. The objection raised is that a different type of complaint should have been alleged in the third-party proceeding even though the third-party complaint therein would be sufficient to fully determine the issue between the parties thereto. (Matter of Yaras [City of Albany], 283 App. Div. 214, affd. 308 N. Y. 864.)

The Municipal Court has jurisdiction of the action pending therein. Accordingly, the motion to remove is denied.  