App. Div.]

First Department, April, 1908. threatened to do - transferring the trial of the action from the seventh district to a district in which one of the parties resides does not appear from the record. If he did, the order is void and the action may, nevertheless, be tried in the seventh district. IHe could not, of his own motion, transfer the trial of the action from the district in which it was brought, in the absence of a demand duly made by the defendant, at the time and in the manner specified in subdivision 4 of section 25 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1904, chap. 625), or the consent of the parties.* If an action is brought in a district which is not the proper one it may, nevertheless, be tried in such district unless the defendant, upon the joinder of issue, demand its removal to the proper district. If no demand is made, then the court has jurisdiction to try the action. This is a privilege given to the defendant of which he may avail himself or not as he sees fit. (Matter of North American Mercantile Agency Co., 124 App. Div. 657.) Here issue had been joined, the defendant had made no demand to have the trial of the action transferred to another district, nor had the parties consented to such change, and the respondent, as justice then presiding in that district, had absolutely no power to transfer the trial to another district, and if he did so his order, as already said, is void. The action may, nevertheless, be tried in that district, and if the papers relating to the action have been transferred to another district, it will be the duty of the clerk to return them to the seventh district. An intimation from the clerk of the seventh district would doubtless be sufficient to secure the return of such papers, and after such return the action can be restored to the calendar and tried.

The order appealed from, therefore, must be affirmed, but without

costs.

INGRAHAM, LAUGHLIN, CLARKE and SCOTT, JJ., concurred.

Order affirmed, without costs.

First Department, April, 1908.

[Vol. 125.

MINNIE T. BROWN, Respondent, v. ALBERT F. MANDO, Appellant.

First Department, April 10, 1908.

Lis pendens - cancellation.

Failure to serve a summons or to attempt to effect substituted service within sixty days after the filing of a lis pendens nullifies the same, and if there be no satisfactory explanation of the neglect the lis pendens will be canceled on motion.

APPEAL by the defendant, Albert F. Mando, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1908.

G. L. Rohan, for the appellant.

Harold Swain, for the respondent.

SCOTT, J.:

The defendant appeals from an order denying his motion to cancel a lis pendens. The action is by a vendee against a vendor to enforce a contract for the sale of real property. The lis pendens was filed on November 14, 1907, and an amended notice of pendency of action, with an amended summons and complaint, was filed on November 18, 1907. The summons and complaint were not served upon defendant until January 20, 1908, more than sixty days after the amended notice had been filed, and no attempt was made to effect substituted service. The notice of motion to cancel the lis pendens was served on January 28, 1908. The plaintiff's explanation of the delay in making service is very unsatisfactory. Her attorney seems to have made no serious attempt to make such service until January 6, 1908, and although it is suggested that defendant evaded service, no proof of that fact is produced. Section 1670 of the Code of Civil Procedure provides that when a notice of pendency of action is filed with the complaint personal service of the summons must be made upon a defendant within sixty days after the filing, or else, before the expiration of the same time, publication of the suminons must be commenced or service

App. Div.]

First Department, April, 1908.

thereof must be made without the State. The language is peremptory, and a failure to comply with it nullifies the lis pendens. (Cohen v. Ratkowsky, 43 App. Div. 196.) Section 1674 authorizes the court in its discretion to cancel a lis pendens if a plaintiff filing the notice unreasonably neglects to proceed in the action. To neglect to make service or commence publication within sixty days after the filing of the notice is one form of unreasonable neglect to proceed with the action (Cohen v. Ratkowsky, supra), and it is such neglect as calls upon the court to exercise its discretion to cancel the notice, for it is unfair to a defendant to leave his property apparently incumbered by a lis pendens, which in fact has lost its efficacy. It is of no consequence that the motion was not made until after service of the summons had actually been made. The defendant could not be expected to move until he knew that a notice had been filed, and there is nothing to show that he knew that any action was contemplated until apprised of the fact by service of the summons and complaint upon him.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. INGRAHAM, LAUGHLIN, CLARKE and HOUGHTON, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

FRANCIS C. PRESKY, Respondent, v. DEGNON-MCLEAN CONTRACTING COMPANY, Appellant, Impleaded with THE CITY OF NEW YORK, Defendant.

First Department, April 10, 1908.

Negligence - defect in street - subway excavation.

In an action to recover for personal injuries caused by a hole in a roadway made by the removal of paving stones, the defendant, a contractor engaged in constructing part of a subway, is not liable where it appears that the hole was in a part of the roadway where he had done no work, and the evidence fails to show that he was responsible for the defect which caused the injury.

APPEAL by the defendant, the Degnon-McLean Contracting Company, from a judgment of the Supreme Court in favor of the

[Vol. 125.

First Department, April, 1908. plaintiff, entered in the office of the clerk of the county of New York on the 16th day of February, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk's office on the 26th day of February, 1907, denying the said defendant's motion for a new trial made upon the minutes.

James F. Donnelly, for the appellant.

Herbert C. Smyth, for the respondent. SCOTT, J.:

The defendant Degnon-McLean Contracting Company appeals from a judgment in favor of the plaintiff for personal injuries. The City of New York, a codefendant, is not a party to this appeal. The appellant was one of the sub-contractors for the rapid transit subway and engaged in constructing that portion of the road which extended up and under Elm street. At Canal street, a very wide street running at right angles to Elm street, the entire surface of the latter street had been removed and Canal street was carried across it by a wooden bridge extending the whole width of Elm street and about twenty or twenty-five feet into Canal street. There were to be stations at Canal street, and excavations had been made on the north and south sides of that street running back some distance from Elm street. These excavations were fenced off from the roadway. In order to construct the bridge over Elm street the stone pavement in Canal street had been removed so that vehicles could pass from the pavement on to the bridge. No more of the pavement of the roadway was removed for this purpose than one or two courses where the bridge and the pavement met, which had been taken up and relaid.

The plaintiff at the time of the accident was driving a loaded truck westerly through Canal street, and approaching the bridge over Elm street, when one of the wheels of his truck slipped into a hole, said to be four feet long and two feet wide, and about the depth of a paving stone. Plaintiff was thrown to the ground and one of the truck wheels passed over him producing somewhat serious injuries. The hole into which the wheel ran was evidently caused by the removal of some of the paving stones. There is no evidence by whom they had been removed, and the only theory upon which

App. Div.]

First Department, April, 1908.

the defendant could be held liable is upon the assumption that the holes were caused by appellant in the prosecution of the work of constructing the subway. It, therefore, became important to accurately locate the hole, which was attempted to be done both by oral testimony and by photographs.

The negligence charged against appellant by the complaint was: "That they did not construct a good, safe and proper bridge over and across the tunnel; * * * that they did not properly inspect and maintain the said bridge and street in a good, safe and proper condition for the use of pedestrians and vehicles, but on the contrary and for a long period of time allowed a hole or rut several feet long and ten or twelve inches deep to be and remain in said Canal street at the easterly end of the bridge aforesaid, and where the bridge aforesaid joined the block pavement of said street." No attempt was made on the trial to show any defect in the bridge or in the manner of its up-keep, and the plaintiff relied solely upon the hole as the cause of his injury. The location of this hole is stated with particularity in the complaint as being at the easterly end of the bridge, where the bridge joined the block pavement. If the evidence had shown that it was at the place thus described there would have been a strong presumption that it had been caused by appellant who concededly constructed the bridge. The evidence is very confused and much testimony appears in the record of which the relevance is not apparent, but the one fact that is made perfectly clear both by the testimony of the plaintiff and other witnesses, and by the photographs is that the hole into which the wheel of the truck slipped was not at the easterly end of the bridge where it joined the block pavement, but ten or twelve feet easterly therefrom in a part of the roadway where it does not appear that appellant had done any work or had had any occasion to disturb the pavement. The evidence, therefore, not only failed to correspond with the pleading, but also failed to attribute to appellant any responsibility for the defect which caused the injury. At the close of plaintiff's case his counsel moved "to amend the complaint to conform to the proof," and under objection and exception his motion was granted. The amendment was not formulated, and it is impossible to say what the complaint alleged, after the amendment, as to the defendant's negligence. The proof was to the