
    Amasa Worthington, Appellant, v. The London Guarantee and Accident Company, Limited, Respondent.
    
      Municipal Court of New York city—it is a new local arid inferior court and has not jurisdiction over a non-resident corporation.
    
    The Municipal Court of the city of New York, established by section 1350 et seep of the charter of that city, is a new court of inferior local jurisdiction and not a continuation of the District Court of the former city of New York.
    Section 1364 of the charter, giving to the Municipal Court of the city of New York jurisdiction over a foreign corporation having an office in the city of New York contravenes section 18 of article 6 of the Constitution of the State of New York, providing that the Legislature shall not confer upon any inferior or local court any greater jurisdiction than is conferred upon County Courts.'
    A foreign corporation having an office in the city of New York is not, by its failure to plead that the Municipal Court of the city of New York is without jurisdiction over it, precluded from asserting that defense on an appeal from a judgmént rendered against it in that court where the fact of its non-residence appeared upon the trial. '
    Appeal by the plaintiff, Amsaa Worthington, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of July, 1899, reversing a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of the plaintiff, entered in the office of the clerk of said Municipal Court on the 30th day of -March, 1899, and also from the -judgment of said Appellate Term, entered in the office of the clerk of the county of New York on the-13th day of July, 1899, in pursuance of said order.
    
      Robert L. Morrell, for the appellant.
    
      Frederick Hulse, for the respondent.
   Rumsey, J.:

The action was brought in the Municipal Court , of the city of New York upon a claim for money only against the defendant. Service was made upon an agent of the defendant in this city. The. pleadings were oral, and no objection was taken to the jurisdiction of the court at the time of answering. Upon the trial it appeared that the'defendant was not a. domestic corporation, hut that its home office was in Chicago, Illinois. The plaintiff recovered a judgment . for the amount of his claim, which upon appeal to the Appellate Term was reversed upon the'ground that it appeared that, as the defendant was a non-resident corporation, the Municipal Court had no jurisdiction.

It appeared in the case that the defendant had an office in the city of New York. By section 1364 of the Greater New York charter, there is given to "the Municipal Court of the city of New York jurisdiction in any action of this kind against a foreign corporation having an office in the city of New York. It is said by the .defendant that it is not within the power of the Legislature to give 'siich jurisdiction to the Municipal Court, which confessedly is a local and inferior court. The plaintiff insists that the Municipal Court, as organized1 by section 1350, and the following sections of the Greater New York charter, is not a new- court, but is a continuation of the former District Court of the city of New York, and that, as that court had jurisdiction in actions upon contract against a foreign corporation having an office in the city of New York, the continuation of that jurisdiction in the Municipal Court was not a violation of the constitutional provision subsequently referred to. But the Municipal Court, as established by the Greater New York charter, was not a continuation of the District Court of the former city of New York, but was a creation of anew court of inferior local jurisdiction. That principle has been established in Matter of Schultes (33 App. Div. 524), and we have no doubt of the correctness of the decision in that regard. The question, then, is, did the Legislature, in establishing the Municipal Court in 1897, give to it in this regard a greater jurisdiction than the Constitution permitted.

It has been held in this court, in the case of Irwin v. Metropolitan Street R. Co. (38 App. Div. 253), that the act creating the Municipal Court was constitutional. The learned presiding justice, in writing the opinion in that case, which was concurred in by the whole court, held that the provision of the Constitution limiting the power of the. Legislature in creating inferior local courts did not forbid the creation of a court which would have territorial jurisdiction extending throughout a single municipality, although its territory might contain more than one county; and that jurisdiction extending over the whole territory of the municipality might lawfully be given to such a court, so that every resident within the municipality might be subject to it. .But it is said in that opinion that it might be that, in the act creating the Municipal Court, jurisdiction might have been attempted to be conferred which contravenes .the .Constitution. In that remark there was had in view the attempt to give jurisdiction to this court over persons who were not residents in the territory over which its jurisdiction extended. This Municipal Court undoubtedly is an inferior local court, and the power to create such courts, if it was not given to the Legislature by the Constitution of 1895, clearly was limited in that instance by the provision that the Legislature should not confer upon any such court thereafter created any greater jurisdiction than is conferred upon County Courts by or under article 6, section 18, of the Constitution. In that article, the jurisdiction of County Courts is prescribed, and it is limited to causes where the defendant resides in the county, and the Legislature is expressly forbidden to extend-the jurisdiction of a County Court to any case where the sum demanded exceeds $2,000, or. in which any person not a resident of the county is a defendant. It cannot be denied that this defendant, not being a domestic corporation of the State of New York, is not a resident within the city of New York. (Plimpton v. Bigelow, 93 N. Y. 592.) Therefore, so much of this section.1364 as attempts to give jurisdiction to the Municipal Court over a foreign corporation, non-resident in the city -of New York, was beyond the power of the Legislature and cannot be sustained.

But it is said that the defendant has waived its right to claim that the Municipal Court had no jurisdiction because the lack of jurisdiction was not pleaded. It was held in Frees v. Ford (6 N. Y. 176) that upon an appeal from a judgment of a court of inferior jurisdiction, if it did not affirmatively appear that the court had jurisdiction, the judgment must be reversed. . In the case of Burckle v. Eckart (3 Den. 279; affd., 3 N. Y. 132) it was held that where, the jurisdiction of the court in a particular case depended upon the residence of the defendant, the required residence, was a jurisdictional fact which must exist, ¡before .-.the court can act., either by issuing process or accepting the appearance of the defendant; that it was necessary to give jurisdiction of the cause and that in such a case there could be no waiver; and in that case the decree of the vice-chancellor was reversed because of the non-residence of the defendants within his circuit, although the defendants had appeared and had not pleaded to the jurisdiction. The same rule has always been held in the courts of the United States in cases brought in the Circuit Courts. (Continental Ins. Co. v. Rhioads, 119 U. S. 237; Gilbert v. York, 111 id. 544.)

It is quite true that there are several cases in which it has been held that a County Court had jurisdiction, although it was not alleged in the complaint that the defendant was a resident of the county, but in each of these cases the appeal had been taken from a decision upon the merits and in neither of them did the non-residence of the defendant appear. All that was. decided in either of these-cases was that the complaint was defective in not alleging the lack of the jurisdiction, and as no objection was taken in the pleadings to that defect the right to take it in that way was waived. But in neither of the cases was it -decided, because it was not necessary to decide, that if the fact of non-residence had been made to appear the right to object to the jurisdiction of. the court would have been waived because not contained in the pleadings, because in neither of those cases did the fact of non-residence appear. (Bunker v. Langs, 76 Hun, 543; Dake v. Miller, 15 id. 356.) If these cases can be construed as holding that because the defendant, being a non-resident, failed to take his objection to'the jurisdiction of the court, he was, therefore, precluded from insisting upon it and the court had jurisdiction, although the non-iiesidenee afterwards appeared, we do not think they can be sustained in view of the case of Burckle v. Eckart (supra). We think that the question was presented in this case, and that the Legislature had no. power to give this newly-created, court jurisdiction.over persons who-are non-residents of the municipality, and for that reason the order of the Appellate Term iis affirmed, with costs.--.

Fan Bbunt, P. J., Barrett, Ingraham and McLaughlin, JJ., concurred.

Order affirmed, with costs.  