Dayton, J.
(dissenting).— I agree with my associates •that the learned trial judge correctly found the facts upon which the final order was issued. I cannot, however, assent to the proposition that the defendant was properly denied a jury trial, or that these proceedings conferred “ upon the (Municipal Court) justice the broad powers formerly vested in chancellors to maize a complete adjustment of all the equities between the 0parties.” The Municipal Court Act, section 1, prescribes in explicit detail the jurisdiction of that court. Subdivision 12 of that section confers jurisdiction in “ a summary proceeding under title two of chapter seventeen of the code of civil procedure to recover possession of real property which, or a portion of which, is situated within the district wherever the application for such recovery is made. Such proceeding may be tried with or without a jury, which may be demanded by any party thereto.” Subdivision two of section two of that act reads: “Said court shall not have any equity jurisdiction, except that this subdivision shall not be -so construed as to prevent a person * * * from setting up an equitable defense in summary proceedings.” This provision conforms to section 18 of article 6 of the Constitution of this State which prohibits the Legislature from conferring upon any inferior or local court of its creation any equity jurisdiction. Plaintiff petitioned to redeem under sections 2256, 2257, 2258, 2259, Code of Civil Procedure, which is part of title 2, chapter 17, of that Code, entitled “ Summary proceedings to recover possession of real property.” This proceeding to redeem is no less summary against a landlord than is the proceeding of a landlord against a tenant; and, when it is brought in a Municipal Court, the act creating *552and prescribing the powers of that court, which is a definitive legislative declaration as to which.there is no ambiguity, must control the procedure. See opinion McAdam, J., P'eople v. Fitzpatrick, Clerk, etc., 35 Misc. Rep. 456. Section 232 of that .act further provides that “ When an issue of fact has been joined in an action or special proceeding and a trial by jury has not been demanded, the court may in its discretion at any stage of the action or proceeding direct that a trial thereof be had by a jury.” This but emphasizes subdivision 12 of section 1, above quoted, demonstrating that in a special proceeding a jury may be demanded by any party thereto. The omission in sections 2256, 2257 and 2259, Code of Civil Procedure, of any reference to a jury trial does not, .in my opinion, deprive the parties in a redemption proceeding in a Municipal Court of the right to demand one. Section 20' of the Municipal Court Act provides that the provisions of the Code of Civil Procedure “ shall apply to the Municipal Court as far as the same can be made applicable and are not in conflict with the provisions of this act; in case of such conflict this act shall govern.” Bien v. Bixby, 18 Misc. Rep. 415, and Bien v. Bixby, 22 id. 126, were decided in 1896 and 18'97, respectively. The Municipal Court Act was passed in 1902; and that act added to the then existing statute the following words in subdivision 12 of section 1: “ Such proceeding may be tried with or without a jury which may be demanded by any party thereto;” and also added section 20 providing that said act should govern where it conflicts with the Code of Civil Procedure. The Legislature, in my opinion, in passing the Municipal Court Act, specifically defined and limited the jurisdiction and powers of that court relating to these proceedings. Sections 1, 2 and 232 of the Municipal Court Act are in conflict with section 2259, Code of Civil Procedure, which provides, that “ upon the return thereof (the order) the judge or justice must hear the allegations and proofs of the parties and must make such final order as justice requires.” Therefore, it follows that the Municipal Court Act must govern and that the trial judge erred in denying the defendant’s demand for a jury. See Karch v. *553Nassau Electric R. R. Co., 123 App. Div. 34. As to the contention that section 18, article 6, of the Constitution of this State and section 2 of the Municipal Court Act, if construed as above suggested, would operate to prevent the Municipal Court from exercising'jurisdiction in actions to foreclose a mechanic’s lien, or to foreclose a chattel mortgage, or to proceed with a case after the entry of an order of inter-pleader, the jurisdiction in such’cases being equitable in its nature, it is sufficient to say that, as to those proceedings, the Legislature has specifically conferred jurisdiction by direct provisions of the Municipal Court Act, and that its right to do so is not before us for decision. Clark v. Mosher, 107 N. Y. 118, cited by my learned associate in the prevailing opinion, was-a construction of section 820, Code of •Civil Procedure, holding that, where an action at law, brought in the Supreme • Court, thereafter becomes an equitable one, neither party is entitled to a jury trial.
The final order should be reversed and a new trial had, without costs.
Order affirmed, with costs, with leave to appellant to appeal to the Appellate Division, First Department.