Allen v. Wolkof

Callaghan, J.

Plaintiff appeals from a judgment of the Municipal Court dismissing the complaint, after a motion made for that relief. The motion was for judgment on the pleadings.

The single question involved in this appeal is the jurisdiction of the Municipal Court to entertain an action against the surety on the official bond of a marshal when the amount claimed exceeds $1,000. The court below held that the Municipal Court had no such jurisdiction.

The plaintiff seeks to maintain this action by virtue of subdivision 2 of section 6 of the Municipal Court Code. That subdivision, after making provisions for an action in replevin where the value of the chattel does not exceed $1,000, and for dispossessing tenants without regard to the amount due, or claimed to be due, for rent, then states that “ an action upon the bond of a marshal of the city of New York ” may be maintained — apparently without any money limitation.

By section 146 of the Municipal Court Code a marshal is required to file a bond in the sum of $3,000. If the Municipal Court had jurisdiction to entertain an action on a bond for that amount, or on a bond for any other sum in excess of $1,000, such authority must be found in subdivision 2 of section 6 of the Municipal Court Code. Subdivision 1 of that' section specifies the character of the actions over which the court has jurisdiction and limits the amount that may be claimed therein to $1,000, but it is contended that, inasmuch as provision for a suit upon a marshal’s bond is not contained in subdivision 1, such failure, or non-inclusion, evidenced an intention on the part of the legislature to give jurisdiction upon such bond without limitation in amount.

The general scheme of the Municipal Court Code was to enlarge the jurisdiction of that court to $1,000, and, in conferring jurisdiction upon that court to entertain actions upon the official bonds of marshals, the legislature evidently intended to do away with the cumbersome, and seemingly unnecessary, procedure prescribed by sections 295 and 296 of the Municipal Court Act. Under the provisions of that act, no action could be brought upon the official bond of a marshal until a justice of the Supreme Court authorized such an action and granted leave to sue. Such justice was required in his order to specify the court in which the action was to be brought, though he had no power to specify that the action should be brought in a court1 unless that court had jurisdiction of the action. Frieland v. Union Surety Co., 43 MisC. Rep. 38.

The presumption is, naturally, that the legislature did not intend to enact a law which would violate the Constitution of the state. If the Municipal Court had jurisdiction to entertain an action for $2,000, the logical inference is that it had jurisdiction to entertain an action for the full amount of the marshal’s bond, which is $3,000. Had the legislature attempted to confer upon the Municipal Court jurisdiction to entertain an action against the surety on a marshal’s bond for a sum in excess of $2,000, such an act would be unconstitutional, as being in contravention of sections 14 and 18 of article 6 of 'the Constitution of the state. These sections prescribe the jurisdiction of the County Court and limit the jurisdiction to be conferred upon any inferior court to a sum not greater in amount than that conferred upon the County Court. The County Court cannot entertain an action where the amount claimed in money damage exceeds $2,000.

An attempt to confer upon the City Court jurisdiction in an action to recover a sum in excess of $2,000 was held unconstitutional. Lewkowics v. Queen Aeroplane Co., 207 N. Y. 290. Clearly, if the legislature had no power to confer jurisdiction on the City Court in excess of the constitutional limitation prescribed for a County Court, it cannot confer such jurisdiction upon the Municipal Court.

The appellant urges' that an action upon the official bond of a marshal can be prosecuted only in the Municipal Court. Such contention can find little support, especially in view of the provisions of section 1888 of the Code of Civil Procedure, which prescribes the method of bringing an action in any court upon an official bond. I conclude, therefore, that the omission in subdivision 2 of section 6 of the Municipal Court Code, apparently deliberate, of any money limitation in an action against the surety on the bond of a marshal, and the retention of the general money jurisdiction of $1,000, plainly indicate the intention of the legislature to limit the amount to be recovered on a marshal’s bond to $1,000. It follows, therefore, that the Municipal Court has no jurisdiction upon a marshal’s bond to recover a sum greater in amount than $1,000, and that the complaint was properly dismissed.

Judgment affirmed, with twenty-five dollars costs.

Clark, J., concurs.