
    Caroline M. Mittnacht, App’lt, v. John Kellemann, Resp’t.
    
      (Court of Appeals,
    
    
      Filed April 26, 1887.)
    
    1. Jurisdiction—District court of New York—No power to transfer ACTION FOR CLAIM AND DELIVERY INTO COMMON PLEAS--LAWS 1857, chap. 844, § 2, sued. 3—Undertaking on removal void.
    A district court of the city of New York has no authority under subd. 3, § 2, of chapter 344, Laws 1857, to order an action for claim and delivery to be transferred from that court into the court of common pleas, and an undertaking given to pay the amount of any judgment awarded by court of common pleas, on such removal, is void as without consideration.
    2. Same.
    Even if the bond had been given upon a sufficient consideration no breach of its conditions was shown in this instance as the court of common pleas never acquired jurisdiction of the person of defendant and the bond referred to a valid judgment.
    8. Same.
    The subsequent appearance of plaintiff in the court of common pleas added nothing to the force of the bond, as the parties could not by voluntary action or agreement create a consideration for an undertaking which had no existence at the time of its execution.
    4. Same.
    Defendant was not estopped from disputing the jurisdiction of the court of common pleas by the recitals in the undertaking.
    Appeal from general term of the court of common pleas for city and county of New York, affirming judgment of general term of marine court, affirming judgment of trial term for defendant, who was surety on bond given for transfer of cause from the district court to the court of common pleas of the city of New York.
    
      Christopher Fine, for app’lt; Jacob L. Hanes, for resp’t.
   Ruder, Ch. J.

In December, 1876, one Jacob Mittnacht commenced an action of claim and delivery for the recovery of property in a district court of the city of New York against John B. Grschwind. Issue was joined in the action, and immediately thereupon the defendant commenced proceedings to remove the case into the court of common pleas of the city of New York. For that purpose he procured to be executed and filed in said district court an undertaking signed by himself, as principal, and John Kellermann and Frederick Dieterle, as sureties, which undertaking, after reciting the commencement of the action under chapter 344 of the Laws of 1857, the joinder of issue therein, that a trial thereof had not been had, and the application of the defendant to remove the case into the court of common pleas under the provisions of said act, continues that now, therefore, we, John B. Grschwind, John Keller-man and Frederick Dieterle, “have, and hereby do, in consideration of the premises aforesaid, and of one dollar to us in hand paid, jointly and severally promise and agree that we will pay to the plaintiff the amount of any judgment that may be awarded against the defendants by the said court of common pleas in this action.” The district court thereupon assumed to make an order removing the case into the court of common pleas, upon the ex parte application of the defendant therein. Thereupon the plaintiff caused said action to be placed upon the calendar of the court of common pleas at a trial term thereof, and when the case was reached, in the regular course of proceedings, moved the same for trial, and, the defendant not appearing, took his default, and entered judgment, upon an inquest, for the return of the property described, and, in case that could not be had, for the amount of $250, its assessed value. No appearance in the action was in any way made in the court of common pleas by the defendant after its attempted removal there, and it does not appear that he ever took any steps in the original action after obtaining the order of removal.

This action is brought to recover the damages arising out of an alleged breach of the undertaking given on the attempted removal. The grounds upon which liability is contested are that the undertaking was without consideration; that the district court had no authority to order a removal of an action for claim and delivery from that court-into the court of common pleas, and that the latter court acquired no jurisdiction of the case by reason of the proceedings to remove it and has rendered no valid judgment, in such action.

It seems to us quite clear that the district court had no authority to order an action for claim and delivery to be transferred from that court into the court of common pleas. By chapter 344 of the Laws of 1857, being an act to consolidate the several acts relating to districts courts in the-city of New -York, it is provided by section 3 that such courts have jurisdiction in the following actions : (i) In actions similar to those provided by sections 53 and 54 of the Code of Procedure, where the sum named shall not. exceed $250; (2) In an action upon the charter, ordinances, or by-laws of the corporation of the city of New York, or a statute of this state, where the penalty shall exceed $250. It is then provided by subdivision 3 of that section, that “in any action commenced in pursuance of this section, where the claim or demand shall exceed the sum of $100, upon the application of the defendant, the justice shall make an order removing the same, at any time after issue joined,, and before the trial of the same, into the court of common pleas in and for the city and county of New York, upon the defendant executing to the plaintiff an undertaking with one or more sufficient sureties to be approved of by the justice of the court, in which such action is commenced, to pay to the plaintiff the amount of any judgment that may be awarded against the defendant by the said court of common pleas.”

It will be observed that this act conferred no jurisdiction-upon the district courts to entertain any actions except those calling for the relief to be obtained by money judgments. It is not claimed that they thereby obtained any jurisdiction of an action for claim and delivery.

By section 17 of chapter 484 of the Laws of 1862, jurisdiction was conferred upon district courts to hear and determine actions for claims and delivery, where the value of the property claimed did not exceed $250. The question whether such an action was removable into the court of common pleas, under section 3 of the act of 1857, arose in that court in 1876, in the case of Curtis v. Besson (6 Daly, 432), where it was held that it was not; the court saying that the act of 1862 made no provision for such removal,, and that the terms of the provisions of section 3 of the act of 1857 were inconsistent with the theory that such power of removal was intended to be conferred. They say: “By that section conferring jurisdiction solely of actions for the recovery of money, the power of removal is only in such, actions (referred to in subdivisions 1 and 2), and the obligation of the undertaking required in such a proceeding is to pay ‘the amount of any (money) judgment;’ while, in a proceeding for the removal of the action for the recovery of the possession of personal property, any such an obligation would be unadapted to the case, and would not furnish the plaintiff with the security for the performance of such terms as the judgment, in such an action, in favor of the plaintiff, would award.” Great weight must be given to the opinions of that court upon questions affecting its-own practice and jurisdiction, and we should be reluctant, to overrule its disposition of such cases, especially when they had been long acquiesced in, even if we were not entirely satisfied with the reasons given therefor. But we-are also of the opinion that the decision of that case was. a correct exposition of the meaning and intent of the statute-referred to.

It follows, from these views, that the order of the district court, removing the original case to the court of common pleas, was without jurisdiction, and did not effect such removal; that the court of common pleas acquired no jurisdiction of that action by force of the order of removal, and that all subsequent proceedings in that court were void and. of no effect. It also follows, from these views, that the execution of the undertaking in question was not made-under any statutory authority, and it cannot be supported, upon the theory that it was executed according to any requirement of law.

Although it may be open to some question whether the security in question comes within the provisions of the statute against bonds taken colore officii (Decker v. Judson, 16 N. Y., 439), it yet derives no support from the statute, and must be sustained, if sustainable at all, upon some other theory. The general rule that bonds taken by public officers, purporting to be taken under statutory authority, but which are not actually authorized by the statute, or do not conform in all material respects with its provisions, are void, is too well established by authority to be questioned or disputed. Post v. Doremus, 60 N. Y., 371; People v. Meighan, 1 Hill, 299; Homan v. Brinckerhoff, 1 Denio, 184.

Some claim -has been made the that it "be upheld as a valid instrument at common law; but such an instrument, like other contracts made between parties, requires a consideration to support it. This contract has none. It was a unilateral undertaking, executed by defendant in an action, acting in hostility to the plaintiff, and by which he sought to obtain an advantageous position in the litigation, against the will of his adversary. If it had force, it was not by any agreement or consent of the parties, but was the act of one party attempted to be imposed upon the other, as a compliance with an assumed statutory authority-. It was not claimed that it had any other efficacy than such as the statute gave it. The admission of the receipt of one dollar' does not state who received it, or from whom it came. Ordinarily such an acknowledgment would import that it came from the obligee, but such an inference cannot legally be indulged when the situation of the parties forbids it. It cannot be presumed that a hostile party in a lawsuit has advanced money to his adversary to enable a proceeding to be taken which he did not know of, and would naturally desire to defeat. This bond was not given as the condition of any favor extended by the court, or as the price of any consideration to be granted by the plaintiff, but was an ex parte proceeding to compel a removal of the case under the claim of a legal right. The defendant did not ask any favor of the plaintiff, and proceeded regardless of his assent or dissent to the proceeding. We therefore think the bond was invalid, as being wholly without consideration.

Assuming, however, that the bond was given upon a sufficient consideration, we are of the opinion that no breach of its conditions has been shown, and that the court of common pleas has never rendered judgment in the action against the defendant. Admitting that the court of common pleas had jurisdiction of actions for claim and delivery, it does not appear that they ever acquired jurisdiction of the person of the defendant. No process of that court was ever served upon him, and he never, in any manner, appeared in the action after its attempted removal to that court. The bond was conditioned to pay any judgment that the court of common pleas should render against the defendant. This clearly implies that it should be a valid judgment of that court, and not the expression of an ineffectual opinion. A decision of that court which it had no authority to make, lacks all of the essential qualities of a judgment. As we have heretofore seen, the court of common pleas acquired no' jurisdiction from the order of the district court, and it acquired none by any subsequent proceedings. That court could not, therefore, render a judgment in that action.

The appellant also claims that the defendants should be precluded from raising the questions as to the invalidity of this bond, because they have not been raised by answer. It will be observed that the questions raised all appear on the face of the complaint, and lie at the foundation of the action. In any view that we can take of the case, no cause of action was stated in the complaint. The subsequent appearance of the plaintiff in the action in the court of common pleas adds nothing to the force of the bond, for the obligation executed by the sureties was either legal when the contemplated action had been taken upon it, or it was then void. The parties to the action could not, by their voluntary action or agreement, create a consideration for an undertaking which had no existence at the time of its execution. While it may be assumed that the parties intended to execute an instrument which should be effectual to remove the case to the court of common pleas, we have no authority to say they intended thereby to leave it optional with the plaintiff to remove it or not, as he should after-wards elect.

Finally, it is claimed that the defendant is estopped- from disputing the jurisdiction of the court of common pleas by the recitals in the undertaking, and that he thereby admits that it did or would acquire jurisdiction by the order of removal. We do not see what recitals there are in this instrument which affirm such a fact, or estop the sureties from availing themselves of the insufficiency or invalidity of the instrument. It may be inferred, from the language of the bond, that the defendant intended to claim that, by filing such a paper, and moving the court to transfer the case, he had, under the act of 1857, the right to have the case removed into the court of common pleas; but there is no recital therein which he now controverts, and none which directly affirms either as fact or opinion. At the strongest, which was then said amounted only to an inference as to what was the defendant’s opinion; and this, honestly entertained and expressed, cannot be the basis of an estoppel or a contract.

The authorities cited by the counsel for the appellant, to the effect that parties to an undertaking are bound by the recitals therein contained, are quite inapplicable to this case, for there are no recitals in this instrument which it is now necessary for him to controvert. The judgment should, therefore, be affirmed»

All concur.  