#### John Tuttle, Respondent, *v.*Thomas P. Galligan et al., Appellants.

(Supreme Court, Appellate Term,

May, 1898.)

Municipal Court of New York — Tender of undertaking to remove case to City Court — Jurisdiction — Code Civ. Pro,, § 3216. , .

Where, in an action in.a district Municipal Court of the City of New York, in which damages in excess of $100 are claimed, the defendants, immediately upon the joining of issue, tender the statutory undertaking required hy section 3216 of the Code of Civil Procedure, for the removal of the case to the City Court, the jurisdiction of the justice is arrested until he has acted upon the undertaking. Pending such action -he has no power to authorize a discontinuance.

Appeal from a decision of the Municipal Court of the City of New York, borough of Manhattan, sixth district, discontinuing the above-entitled action.

Nadal, Smyth, Carrere *&*Trafford (Edward P. Mowton, of counsel), for appellants.

Sidney J. Cowen, for respondent.

Beekman, P. J.

This action was brought in the Municipal Court of the City of New York, borough.of Manhattan, sixth dis*458trict, for the recovery of the sum, ¡of $500' damages for personal injuries .alleged to have been ■,caused by the negligence ,of .the defendants. Upon the return day of the summons the defendants appeared by their attorneys, pleaded a general denial, and thereupon applied for an order removing the action into the City Court of Hew York, at the same time tendering the undertaking required by law in such a case. Section 3216, Code of Civil Procedure. Upon' this the attorney for the plaintiff immediately .asked leave to .discontinue, which was granted by the justice^ and judgment dismissing the complaint, with costs, seems to have been rendered accordingly. From this determination the defendants appeal to this court.

Section-3216 is mandatory in its character, and where the motion is timely, as it was here, requires the justice to make the order of removal upon the defendant filing with the clerk an undertaking, the nature of which is prescribed. It has been held that when such an.undertaking is prepared and delivered for approval, the power of the justice in the case ceases until he disposes of the new element thus introduced. Hogan v. Devlin, 2 Daly, 184; Warren v. Campbell, 14 N. Y. Supp. 165.

In the case first cited, the court says (p. 186): “He (the justice), may be authorized to adjourn the action for the purpose of informing himself of the sufficiency of the sureties, but this would be the limit of his power. The undertaking is designed to destroy his jurisdiction, and it arrests it for the time being, and, indeed,_ until he has approved the undertaking or refused to do so.” ,

In the case at bar the justice refused to consider the undertaking at all or to entertain the defendants’ application, as he was clearly . bound to do, but. as has been stated, ’granted a discontinuance and awarded a judgment of nonsuit accordingly, with costs, as provided in section 1383 of the Hew ¡York City Consolidation Act. It is plain under the authorities that he had no power to do so, and that for this error the judgment must be reversed. While a plaintiff in these courts has a right to discontinue at any stage of the ■ action before it is finally submitted, it is obvious, in the nature of things, that the right cannot be asserted at a time when the limitations upon the power of the justice, imposed through the operation of another provision of law, are such that he cannot act upon the application.

- Judgment reversed, with costs, and cause remitted to the court below for action upon the defendants’ motion for removal.

*459Gildersleeve and Giegebich, JJ., concur.

Judgment reversed, with costs, and cause remitted to court below for action upon defendants’ motion for removal.