#### Isaac Leverson, Respondent, *v.*Jacob A. Zimmerman, Appellant.

(Supreme Court, Appellate Term,

May, 1900.)

1. Municipal Court of the city of New York — Removal to City Court —- Code C. P., § 3316.

Where, in an action in the Municipal Court of the city of New York, removable by virtue of the amount involved to the City Court of said city, the defendant presents, before any adjournment had, an undertaking in the largest amount specified in section 3216 of the Code of Civil Procedure, the Municipal Court is ousted of jurisdiction, and it is not material that the undertaking was executed before the trial justice had fixed its amount.

*6432. Appeal — Waiver.

The fact that the defendant introduced evidence, after his application for a removal had been denied, is not a waiver of his right subsequently to appeal from a judgment for the plaintiff.

Appeal from a judgment of the Municipal Court of the city of New York, fourth judicial district, borough of Manhattan.

The action was for money had and received and the amount $500. The plaintiff had judgment for $516.50.

Frank Herwig (William H. Blinker, of counsel), for appellant.

Eantrowitz & Esberg (Morris Esberg, of counsel), for respondent. :

*Per Curiam.*

On the 27th day of July, 1899, when the defendant tendered the undertaking mentioned in the affidavit attached to the return, no adjournment had been granted upon his application. In fact, there had been no adjournment upon any one’s application. From that moment the jurisdiction of the justice was arrested. Tuttle v. Galligan, 23 Misc. Rep. 457. This case is to be distinguished from that of Ives v. Quinn, 7 Misc. Rep. 660, in which case there was an adjournment after the return day and before an undertaking was tendered. The fact that the undertaking was executed before the court had made an order- fixing its amount was no reason for denying the application for removal, particularly in view of the fact that the undertaking was for the largest amount mentioned in section 3216 of the Code of Civil Procedure. Morgan v. L. V. R. R. Co., 14 Misc. Rep. 26.

Plaintiff contends that by appearing at the trial and offering evidence the defendant waived his right to appeal. We are of the opinion that this contention is untenable. A party is not bound to abstain from taking such steps as will protect his interests. It was against the interests of the defendant to have a judgment entered against him. By contesting plaintiff’s claim on the trial, he did not accept any benefit under the ruling of the justice. He was simply protecting his own interests. It was held, in Barker v. White, 58 N. Y. 204, that where an interlocutory judgment and decree directs a reference and accounting, and a party appears before the referee and presents claims, supports the same by proof and contests the claim of the opposing party, he does not thereby waive his right to move for a new trial or to appeal from an order *644denying one. And in Scherer v. Hopkins, 16 N. Y. Snpp. 863, a judgment was reversed in a case like the one at bar after a trial on the merits.

We are of the opinion that the judgment herein should he reversed and the cause sent back to the court below to be proceeded with as if no trial or adjournment of the action had been taken after issue joined, with costs of this appeal to the appellant to abide the event of the action.

Present: Truax, P. J., Scott and Dugko, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.