§ 325.Grounds for removal.

(See also Advisory Committee note preceding § 301, under subheading “Removal, transfer and consolidation of cases.”).

Subd (a) is derived from part of the first sentence of CPA § 110. Section 110 was added as new by the Joint Legislative Committee that drafted the CPA. The remainder of the first sentence, stating that no action shall be dismissed for a mistake in the court, is covered by new CPLR § 2001, governing mistakes generally. The last sentence expressing a rule common to all the present removal provisions, has been placed in new CPLR rule 326(b).

The first sentence of subd (b) is derived from the first two subds of CPA § 110-a. Section 110-a was added to the CPA in 1932. NY Laws 1932, c 605. There was considerable overlap between it and CPA § 110, since the mistake warranting removal under the latter section frequently related to the jurisdictional matters covered by § 110-a. See Luther v Silver, 130 Misc 21, 223 NY Supp 468 (Sup Ct 1927). Indeed, the application for removal in such cases was sometimes made under the authority of both sections. See Lopez v Wirberger, 5 Misc 2d 8, 139 NYS2d 539 (Sup Ct 1954). Section 110-a was more detailed, however, and covered in its subd 3 matters which were not treated in § 110—i. e., the transfer of papers and the inoperability in the second court of a waiver of jury trial made in the first court. The provision governing transfer of papers should be applicable to all types and removal and new CPLR rule 326(b) so provides, although such a provision formerly appeared only in CPA §§ 110-a and 110-b. The jury trial waiver provision also appeared only in CPA §§ 110-a and 110-b. It has been retained, stated in more direct terms, as the second sentence of subds (b) and (c), which correspond to these sections. There is no reason to apply it to other types of removal; indeed, the purpose of its presence even in CPA § 110-b is somewhat obscure. It first appeared as an addition to § 110-a in 1935 (NY Laws 1935, c 317), apparently enacted to codify the result of a decision of the Appellate Division, First Department, earlier that year. Thompson v Yellow Taxi Corp. 243 App Div 282, 276 NY Supp 937 (1st Dept 1935). In the Thompson case it was held that a defendant’s waiver of jury trial in the lower court was inoperative after removal to the higher court, since he was not aware before the removal of the extent of the increased damages subsequently claimed. The Thompson case and the new amendment were followed by the Second Department in Matter of Sensale, 246 App Div 539, 282 NY Supp 483 (2d Dept 1935). When CPA § 110-b was enacted in 1949 a similar provision was placed in it as subd 4. However, in a recent case involving removal to a lower court under § 110-b, a waiver before removal was held binding in the second court and the decision inexplicably failed to mention the jury trial waiver provision. Montagna v Doyle, 3 Misc 2d 152, 149 NYS2d 107 (Sup Ct 1956). In the Montagna case the court relied instead on the case law doctrine that “[g]enerally speaking, the waiver of a jury trial may not be retracted and is effective during the life of the litigation.” Id. at 153, 149 NYS2d at 108–09; see also Laventhall v Fireman’s Ins. Co. 266 App Div 756, 41 NYS2d 302 (2d Dept), appeal dismissed, 291 NY 657, 51 NE2d 934 (1943); Tracy v Falvey, 102 App Div 585, 92 NY Supp 625 (1st Dept 1905). The Montagna opinion distinguished the Thompson case on the ground that a transfer in the other direction—from a lower to a higher court—was there involved. There is certainly some basis for the position that the rationale of the Thompson decision, where the claim against defendant was increased from $3,000 to $25,000 after his waiver, has no application where the claim is decreased and the case moved to a lower court. Similar reasoning has been used to hold a waiver in the Supreme Court binding after removal to the Surrogate’s Court (presumably under § 190-a), the court holding the Thompson decision inapplicable where the transfer is “to a court of co-ordinate jurisdiction.” Matter of Pollak, 183 Misc 910, 913, 55 NYS2d 614, 617 (Surr Ct 1944). Nevertheless, while the purpose of placing the provision in § 110-b may be obscure, perhaps intended only to encourage use of the section, its language is plain and the Montagna decision seems unwarranted. The phrase “the court in which an action is pending does not have jurisdiction to grant the relief to which the parties are entitled” is substituted in the new provision for the former express references to lack of jurisdiction over real property or to award an increased amount of damages. The former phrase “the title to real property will come in question” is imprecise; title may be an issue in a case and yet not deprive a lower court of jurisdiction—for example, in an assault case where the defense is that the defendant owns the property from which he forcibly ejected the plaintiff. The phrase was added in 1943 (NY Laws 1943, c 475), suggested by a Judicial Council recommendation ancillary to its proposed uniform city court act. See 8 NY Jud Council Rep 265, 314–15 (1942). It served a need at that time because the section then only covered lack of jurisdiction to award an increased amount of damages. The language substituted in the new provision, however, is broad enough to cover both kinds of defects of jurisdiction. The phrase “or the court does not have jurisdiction of the subject matter” is also omitted as covered by the substituted language. Although this phrase was also added by the 1943 amendment, it does not appear in the Judicial Council’s recommendation and its purpose is unclear. It has been held that the phrase “must be read in the light of the first part of the subdivision, limiting the scope of the section to the two classes of cases enumerated therein.” Matter of Yaras, 283 App Div 214, 217–18, 126 NYS2d 733, 737 (3d Dept 1953), affd, 308 NY 864, 126 NE2d 306 (1955). Pursuant to new CPLR § 2212 a motion under these subdivisions may be made either to the court or to a judge thereof. The former sections referred only to a “judge” or “justice” and at least one decision has stated that application to the court was consequently “improper.” See Helfgott v Tannen, 208 Misc 335, 141 NYS2d 307 (Sup Ct 1955).

The first sentence of subd (c) is derived from subd 1 and the second from subd 4 of CPA § 110-b. As to the second sentence, see notes to subd (b). As originally enacted in 1949, § 110-b was restricted to removal from the Supreme Court in the counties within the city of New York. In 1954 it was given state-wide application and also extended to County Courts outside the city of New York. NY Laws 1954, c 331. In 1955, upon recommendation of the Temporary Commission on the Courts (see NY Temp Comm’n on the Courts Rep 29, Leg Doc 45 (1955)), it was further extended to the City Court of the city of New York. NY Laws 1955, c 717. There is no reason why its removal procedure should not be applicable to all courts in the state and the new rule accordingly omits the former enumeration of courts. The extent of its utilization as a calendar control device depends in large part on the local adoption of implementing preference rules. See 20 NY Jud Council Rep 75–76 (1954). The proviso concerning defendant’s consent was also added by the 1955 amendment recommended by the Temporary Commission on the Courts: since the plaintiff was free in the first instance to choose his forum, he should be free to transfer the case to a lower court without the consent of a defendant except in the situations covered by the proviso. See NY Temp Comm’n Rep 29, Leg Doc 45 (1955). The portions of the proviso that are omitted in the new subdivision are covered by the earlier phrase “and a lower court would have had jurisdiction of the action but for the amount of damages claimed.” The new subd eliminates the misleading purport of the phrase “said action should have been brought in a lower court.” What the statute means to say is only that the action could have been brought in a lower court—i. e., that such lower court would have had jurisdiction.

Subd (d) is derived from part of CPA § 190-a with no change of substance. The second sentence and the last clause of the third sentence of § 190-a are covered in new CPLR rule 326.

Subd (e) is derived from CPA § 190 with no change of substance. It should be considered in connection with CPA § 73 which required a county judge who was incapable of acting in an action or special proceeding to file a certificate of the fact with the county clerk and provided for automatic removal to the Supreme Court upon the filing of this certificate. Since § 73 was a direction to courts and their officers, requiring no action on the litigants’ part, it has been transferred as § 192 of the Judiciary Law. The relationship between the automatic removal of CPA § 73 and the motion procedure of CPA § 190 is disclosed by considering their common source in § 342 of the Throop Code. Under that provision, removal was automatic if the county judge filed a certificate, but if he failed to do so, the removal might be effected by a motion upon notice and proof. See Queens-Nassau Mortgage Co. v Graham, 157 App Div 489, 142 NY Supp 589 (2d Dept 1913). Also to be considered in connection with these provisions is the power of a county judge to hold court in a county other than his own when requested by another county judge or by designation of the governor in case of death, absence or incapacity of a county judge. NY Const art VI, § 11; CPA § 76; see Queens-Nassau Mortgage Co. v Graham, supra. CPA § 76 has been transferred to the Judiciary Law as § 190-g. The incapacity referred to in the new subdivision has been narrowly defined as “an incapacity relating to a particular action or special proceeding, rather than . . . a general incapacity to act as a judge at all” ( Matter of Munger, 10 App Div 347, 348, 41 NY Supp 882, 883 (2d Dept 1896)); it may even be limited to disqualification by reason of interest or consanguinity under Judiciary Law § 14. See Town of Hempstead v Listengart, 196 Misc 858, 89 NYS2d 751 (Sup Ct) affd 275 App Div 953, 90 NYS2d 664 (2d Dept 1949). The stay provision of CPA § 190 is covered by new CPLR rule 326(a) and the beginning of the second sentence of that section by new CPLR rule 326(b).

Add, L 1962, ch 308, § 1, eff Sept 1, 1963; amd, L 1966, ch 961, § 3; L 1968, ch 502, eff Sept 1, 1968; L 1988, ch 397, § 8, eff July 1, 1988.