
    William Schiller, Respondent, v. Henry B. Hardenburg et al., Appellants.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Municipal Courts: Procedure — Transfer to another district; Review — Interlocutory order on appeal from judgment.
    Where an action is brought in the Municipal Court of the city of New York, in the first district of the borough of Manhattan, by a plaintiff who lives in New Jersey but works in that district against a defendant who lives in Brooklyn, the defendant is entitled to have the case removed to the district in which he lives.
    But where the defendant’s motion to remove the action was denied, he cannot review the error upon an appeal from the final judgment.
    
      Appeal by the defendants from a judgment of the Municipal Court, of the city of New York, first district, borough of Manhattan, rendered in favor of the plaintiff.
    Rudolph Marks, for appellants.
    Eespondent filing no brief.
   Gildersleeve, J.

A summons in this action was issued on June 4, 1906, returnable June 12, 1906, and was returned with "proof of personal service upon the defendant Ilardenburg at Centre street in this city. The summons was issued out of and returnable to the First District Court, borough of Manhattan. Upon the return day, the defendant Ilardenburg appeared and filed an affidavit setting forth that the defendant resided in the borough of Brooklyn, seventh district, and that the plaintiff also resided in Brooklyn and asked that the cause be removed from said first district to the seventh district of Brooklyn for trial. This motion was opposed by the plaintiff, and time was given him to file an affidavit; and the case was adjourned until June 26, 1906. Upon that day the plaintiff submitted an affidavit in which he testified that he “ resides at 3787 Boulevard in the City of Hoboken, State of Hew Jersey and works at 117-119 Prince Street which is in the First District, Borough of Manhattan.” The court thereupon denied the defendant’s motion for a removal of the cause, and an order to that effect was entered. The defendant made no further appearance in the action; and, on the 3d day of July, 1906, judgment was rendered against the defendant Harden-burg, from which judgment he appeals and states in his notice of appeal that he brings up for review the order denying his motion for a removal of the cause from the first district of-the borough of Manhattan to the seventh district, borough of Brooklyn. The refusal of the court to make the transfer of the action was undoubtedly error. Clearly the plaintiff was not a resident of the city of Hew York. His affidavit so states; and the fact therein stated that he “works at 117— 119 Prince Street, Borough of Manhattan, which is in the First District ” in no way gives the court a right to retain the cause for trial in said first district. The place of trial of an action depends solely upon the residence of the parties thereto; and section 25, subdivision 3, declares that an action in the Municipal Court must, when brought by a plaintiff not residing in the city of Hew York, be brought in the district in which the defendant or one of the defendants resides. It is true that said subdivision also declares that “ no person who shall have a place in said city for the transaction of business shall be deemed a nonresident under- the provisions of this act; ” but this clause cannot be construed as intending to give a person, who is merely working ” at a place in a certain district and is actually a nonresident of the State, a right to name the place of trial of an action brought by him, fixed in that district, as against a defendant who actually resides in another district within the city. Subdivision 4 of section 25 requires the court to make an order removing the cause, when the district in which the action is brought is not the proper one, upon demand therefor made at the joinder of issue and stating the proper district in which the cause must be tried; and the defendant has complied with the provisions of the section in those respects. It follows, therefore, that the order removing the cause to the seventh district, borough of Brooklyn, should have been granted. The defendant, however, cannot be relieved under this appeal. The appeal is from a judgment taken by default; and, from such a judgment, taken under the circumstances in this case, no appeal will lie. All the cases cited by the appellant relative to the right to appeal from judgments taken by default were decided prior to the passage of the Municipal Court Act and are not now applicable. Where personal service of the summons is not made and the defendant has not appeared, an appeal will lie under section 311, Mun. Ct. Act. So also an appeal will lie from a judgment rendered without jurisdiction (Risley v. Phenix Bank, 83 N. Y. 318; Catlin v. Rundell, 1 App. Div. 157; McMahon v. Rauhr, 47 N. Y. 67); but in the case at bar the court had jurisdiction both of the person and subject matter and merely erred in a matter of practice. The statute (section 25 of the Municipal Court- Act) expressly declares that, notwithstanding the action is not brought in the proper district, it may be tried there if no demand for transfer is made; and, in case demand is made there, the action is not dismissed but removed to the proper district. The defendant should apply to the court below to open his default and, if defeated upon the trial of the issues, upon appeal from the judgment can then have the order complained of reversed and the case sent to the proper district for trial.

Blanchard and Dayton, JJ., concur.

Appeal dismissed, with ten dollars costs.  