Oakes v. High

¶1It has become the settled rule by adjudications in the court of appeals, and in this court, that, on the removal of a cause from a district court to this court, it continues to be in effect an action in a district court, the trial of which is to be had in this court. Smith v. White, 23 N. Y. 572; Salter v. Parkhurst, 2 Daly, 240; Latteman v. Fere, 11 Civ. Proc. R. 217; Walker v. Scott, 3 Misc. Rep. 329, 23 N. Y. Supp. 334; Myers v. Rosenback, 7 Misc. Rep. 560, 28 N. Y. Supp. 9, affirmed 9 Misc. Rep. 89, 29 N. Y. Supp. 34. As it continues to be, in effect, an action in a district court, it would seem to follow as a corollary that the removal is without prejudice to the proceedings already had in the distict court, and that they stand until altered or revoked by this court. I fail, therefore, to perceive why the removal of the cause to this court should operate to abrogate the order of the district court permitting the plaintiff to sue as a poor person. If that result were to follow, then surely every other proceeding, including the pleadings in such action, would be swept away thereby. Such never was the intention of the lawmaking power, for the statute expressly provides that upon the granting of the order of removal “the clerk of the district court must forthwith deliver to the clerk of the court of common pleas all process, pleadings, and other papers in the action, and certified copies of all minutes, entries, and orders relating thereto, which must be filed, entered, or recorded, as the case requires, in the latter’s office.” Code Civ. Proc. § 3216; Consolidation Act (Laws 1882, c. 410) § 1287. For these reasons I am constrained to dissent from the conclusion reached by my associates that the plaintiff should have obtained a new order to prosecute in forma paupéris if she desired to proceed in the action as a poor person; but under the circumstances of the case, which have been so clearly detailed by Judge BOOKSTAVER, and in the light of the authorities cited by him, I am of the opinion that the plaintiff lost all right under the said order permitting her to sue as a poor person by reason of her unexcusable laches (see Harris v. Van Wagenen, 14 Wkly. Dig. 212), and therefore I think that upon this ground the order appealed from should be affirmed, with costs.