#### William Enright, Respondent, *v.*The Franklin Publishing Co., Appellant.

(Supreme Court, Appellate Term,

July, 1898.)

1. District Courts of New York — Removal of cause.

Where a defendant, who has, upon the return of the summons in an action in a District Court of the city of New York, applied for the removal of the cause to the City Court, withdraws the application and obtains an adjournment, he thereby loses b's .right to a removal."

*181Evidence — Credibility of witness.

Where a question is put to a witness, on cross-examination, on the part of the defendant, apparently to elicit evidence in support of an affirmative defense and from that point of view is properly excluded, the fact that such an inquiry was admissible as bearing upon the credibility of the witness is not sufficient ground for a reversal where the attention of the trial justice was not called to the fact that the question was put for that purpose.

Appeal from a judgment rendered in the Municipal Court of the city of New York, borough of Manhattan, Fourth District, in favor of the plaintiff.

Philip Carpenter, for appellant.

Moses Esberg, for respondent.

Beekman, P. J.

The justice in his return explicitly states that the defendant, having made an application for the removal of the cause to the City Court, subsequently withdrew such application, and sought and obtained an adjournment of the trial. There is nothing in the record which is inconsistent with this statement, and the facts thus certified must, therefore,'be accepted as conclusive. A second application for the same purpose was made on the adjourned day. This was properly denied by the justice. The motion for removal made on the return day of the summons having been withdrawn, and an adjournment of the trial having been granted upon the request of defendant, the latter had then lost its right to a removal of the cause. § 3216, Code Civ. Pro.; Dinkel v. Wehle, 11 Abb. N. C. 124.

With respect to the trial, the record shows that the decision in favor of the plaintiff rests upon the determination of a question of fact, upon which the evidence was conflicting. Under such circumstances the appellate court will not .disturb the judgment below, unless it was obviously against the weight of evidence. We cannot say that such was the case here. There is but one exception which, in our opinion, calls for comment here. The plaintiff was the assignee of the claim in suit. His assignor, who was the chief witness in support of his case, was asked 'upon cross-examination this question: *“*Q. Is it a fact that you expect to have whatever money comes out of this case, if any, less your counsel’s fees? ” The counsel for the plaintiff objected to this on the ground that it was immaterial, irrelevant and incompetent, which objection was sus*182tained, and an exception thereto was taken by the defendant. In its answer the defendant claimed that the plaintiff was not the real party in interest, and the question above quoted was one of a series of inquiries evidently made for the purpose of developing proof in support of this defense. From that point of view the ruling of the court was correct. Sheridan v. Mayor, 68 N. Y. 30; Cunningham v. Cohn, 14 Misc. Rep. 12, 13; Toplitz v. King Bridge Co., 20 id, 576. Counsel for the defendant now claims that the question was a proper one, inasmuch as it tended to show an interest in the controversy, which should be considered in determining the credibility of the witness. He should, however, have called the attention of the justice to the fact that the question was put for that purpose rather than to impeach the assignment. Asi'this was not done, we do not think the exception presents sufficient ground for a reversal. The judgment should, therefore, be affirmed.

Gildersleeve and Giegerich, JJ„ concur.

Judgment affirmed, with costs.