#### Matter of the Application of Elizabeth Suydam for Remanding to the Municipal Court, Borough of Manhattan, Third District, of a Certain Action, Against the Metropolitan Steeet Railway Company, and John Scullan.

Appeal by one of two defendants from an order of this court, remanding an action to the Third Municipal Court, after an order of removal has been made by said Municipal Court.

M. A. Lesser, for respondent.

Henry A. Robinson (Ambrose F. McCabe, of counsel), for appellant.

Schuchman, J.

The action was brought by one Elizabeth Suydam, as plaintiff, against the Metropolitan Street Railway Company and John Scullan, as defendants, in the sum of $500.

On the return day of the summons both defendants appeared by separate attorneys, but the record does not show that either of them joined issue, except that the order of removal recites that the defendant, the Metropolitan Street Railway Company, appeared and joined issue.

The notice of the motion “ to remand ” and the order entered on the decision of that motion (being the order appealed from) *869recites the affidavit of M. A. Lesser, the plaintiff’s attorney, and all the papers, pleadings and proceedings in the action, as the papers on which said motion was founded and said order made; but no pleading whatever is contained in the appeal-book.

The justice, who made the order appealed from, in his memorandum of decision of the motion, says: “ Where, as in this action, two defendants are sued and served, and both appear and answer separately and by different attorneys, the cause may not be removed to this court upon the application of one of the defendants. All the defendants answering must join in the application.” But there is no proof whatever that the defendant Scullan answered or joined issue.

Upon such an imperfect record, not containing the contents of any pleading in the action, thereby not enabling the court to see whether the cause of action is one on which the two defendants are liable jointly or severally, nor showing that the defendant Scullan joined any issue herein, we are asked to pass npon the question (and thereby establish a precedent, both litigants admitting there is none) whether, under section 1366 of the Laws of 1897 (charter of Greater New York), reading as follows: “ In an action (brought in a Municipal Court) where the damages as stated in the complaint exceed the sum of $250, the defendant may, after issue joined, apply to the justice for an order removing the action ”■— one defendant can remove a cause from the Municipal Court to this court, or whether all of the defendants must join in the removal proceeding.

We are unable to do so, so as to prevent injustice to be done to one or the other of the litigants herein.

Justice Daly, in Field v. Talcott, 1 Law Bull. 22, says: *“*There is no statutory provision authorizing such an order to remand a cause, but the common-law powers of the court are ample to dispose of cases brought before it in such a way as to prevent injustice and delay.”

Order appealed from is reversed, with $10 costs and disbursements to the appellant, and the motion to remand the cause is denied, without costs, with leave to the respondent to renew said; motion on a more complete record.

Fitzsimons, Ch. J., and Conlan, J., concur.

Order reversed, with $10 costs, and motion to remand denied, without costs, with leave to renew said motion.