Frieland v. Union Surety & Guaranty Co.

Gildersleeve, J.

The sole question raised by this appeal is whether the Municipal Court has jurisdiction to render judgment against a foreign corporation, having an office in the city of Hew York, and being the surety in a bond given by one of the marshals of the city of Hew York for a greater sum than $500. The Municipal Court held, in this case, that it had not, and, as the plaintiff claimed to recover upward of $600, dismissed the complaint on that ground alone. Hence this appeal.

The plaintiff’s assignors recovered judgment against one Gunn, a marshal appointed for the borough of Brooklyn, and, having pursuant to sections 295 and 296 of the Municipal Court Act (Laws of 1902, chap. 580), applied to a justice of the Supreme Court, in the Second Department, tor leave to prosecute the marshal’s bond in their own names, leave was granted and it was ordered to be prosecuted in the Municipal Court of the city of Yew York, and this action was then brought by the plaintiff as assignee of the judgment creditors. The order granting leave to prosecute the bond in question, as originally made, designated the County Court of Kings county as the court in which the action might be brought. But, on the application of the attorney for the moving parties, plaintiff’s assignors, it was resettled and modified by substituting the Municipal Court of the city of Yew York in place of the County Court of Kings county.

The determination of the question thus presented seems to rest on the construction of subdivisions 5 and 18 of section 1, and of section 296 of the act. Subdivision 5 specifies, as a subject of jurisdiction of the Municipal Court, “ the bond of a marshal of the city of Yew York, as prescribed in this act.” And subdivision 18 specifies, as persons subject to its jurisdiction (“persons” being defined in section 360 as including both corporations and natural persons), among others, a foreign corporation having an office in the city of Yew York, where the amount claimed does not exceed $500.

Section 295 of the act prescribes the conditions and procedure for obtaining leave to prosecute a marshal’s bond by a person aggrieved by the marshal’s official misconduct, and section 296 declares that the justice of the Supreme Court, to whom the application for leave is made, may order the bond to be prosecuted in the Municipal Court of the city of Yew York or in the City Court of the city of Yew York, if the borough for which the marshal was appointed be within the county of Yew York, or in the County Court of the county wherein such borough is situated, if in any other county.

That section further provides that: “Either of said courts shall have jurisdiction in actions brought on such bond, upon such leave being granted.” Thus, by the terms of this section, as construed by us in Fohs v. Rain, 39 Misc. Rep. 319, the justice could have ordered the bond prosecuted in the Municipal Court or in the County Court of Kings county. As already noted, the parties first chose the County Court and afterward the Municipal Court. In support of his position that the jurisdiction of the Municipal Court in this case was not limited to $500 the counsel for the appellant argues that subdivision 5 of the act confers jurisdiction in an action on the bond of a marshal without limit to the amount of damages it may award, and that subdivision 18, although seemingly limited to actions where the amount claimed does not exce.ed $500, is to be construed as applying that limit exclusively to actions against an administrator or an executor as such; and that it was intended as an increase of the amount to which the District Courts had by the act of 1895 been limited in suits against an executor or an administrator.

The obvious sources of the jurisdiction of the Municipal Court, in a case like this, are subdivisions 5 and 18 above cited. The former designates the subject-matter of the cognizance, the latter the persons over which it may exercise jurisdiction. One of those persons is a foreign corporation having an office in the city of New York, to which description the defendant here answers. There is no limit in the amount specified in subdivision 5, but subdivision 18 contains the limitation of $500. Those two subdivisions must be read together, and, so read, by the simplest rules of syntax, the limitation of $500 in subdivision 18 applies to each and every of the persons therein designated. The intention of the Legislature to this effect could hardly be more plainly expressed. It follows from this view that the court below was right in holding that it had no jurisdiction to entertain this action, unless section 296 conferred jurisdiction on that court. Recurring to the terms of that section it will be observed that the Legislature attempted to clothe a justice of the Supreme Court, sitting at Special Term, with the power and authority to confer upon the Municipal Court, the City Court of the city of New York and the County Court, jurisdiction of actions on marshal’s bonds without limit as to amount; and, in one case, that of the County Court, in the face of the express prohibition of the Constitution and the statute against the County Court taking jurisdiction in actions in which the amount claimed exceeds $2,000 or the defendant is not a resident of the county. The County Court was established by the Constitution and its jurisdiction expressly defined and declared in that instrument. The jurisdiction granted to that court excludes a cause in which a nonresident of the county is the defendant, or in which the amount claimed exceeds $2,000. And to guard against legislative interference with these two conditions and limitations of its jurisdiction the Constitution provides that the Legislature may enlarge or restrict the jurisdiction of the County Court, provided it does not extend it so as to authorize an action therein for the recovery of money only, in which the damages demanded exceed $2,000 or in which a person not a resident of the county is the defendant. N. Y. Const., art. VI, § 14.

¡Now, section 296 of the Municipal Court Act is an attempt to give a justice of the Supreme Court at Special Term the power to say that, in this case, the plaintiff may recover $600, when the act says he cannot recover more than $500, and that the plaintiff, if he had so chosen, as he first did, might have had leave to sue the defendant, a foreign corporation not having an office in Kings county, for an unlimited amount in the County Court of that county, when the Constitution has declared that the Legislature shall not touch those two features of that court’s jurisdiction. The Legislature could not delegate a power which it did not possess; nor, indeed, if it had the power was it within its prerogative to delegate to one man, not even to a justice of the Supreme Court, authority which might be unwisely used to the unintentional, though fatal, confusion of an important part of oiir judicial system and the inconvenience of the people. The attempt to do so is condemned by every principle of constitutional law and by every consideration of a wise expediency. Cooley Const. Lim. (7th ed.), chap. 5, p. 163; Black Const. Law, § 142 et seq. For these reasons we hold that the jurisdiction of the Municipal Court in this case rests upon subdivisions 5 and 18 of section 1 of the act, and that they limit the recovery against the defendant here to $500.

The judgment is affirmed, with costs.

Fbeedmabt, P. J., concurs. ■