
    BRETZ against THE MAYOR, &c. OF NEW YORK.
    
      New York Superior Court; General Term,
    
      May, 1868.
    Public Statute.—Taking Judicial Notice.
    A statute which is private or local in many of its provisions, may contain a section which is of a public or general - character; in which'case, the courts will take judicial notice of such section.
    Section 6 of the act of April 23, 1867 (2 Laws of 1867, 1,606, ch. 586),— providing that actions against the corporation of the city of Now York shall be brought in the supremo court of the first district,—is a public statute, and, although not pleaded, renders it the duty of any other court in which such an action is brought, to sustain a demurrer if interposed to the jurisdiction.
    That enactment is constitutional.
    Appeal from an order overruling a demurrer.
    The plaintiff brought this action to recover damages for personal injuries sustained by him from being thrown from his carriage in consequence of obstructions left by the agents of the defendants in the Eighth Avenue in the city of Hew York.
    The defendants demurred to the complaint. The only ground of demurrer urged, was, that since the enactment of 2 Laws of 1867, 1,606, ch. 586, § 6,—giving the supreme court in the first district exclusive jurisdiction of actions against the city,—the superior court could not take jurisdiction of such a cause. At the special term the demurrer was overruled, upon the ground that the statute must be pleaded to enable the court to take cognizance of it. The defendants now appealed from this decision.
    The decision at special term is reported, 8 ante, 478.
    
      
      Richard O'Gorman, corporation counsel, for the appellants.
    
      A. H. Reavey, for the respondent.
   By the Court.—Garvin, J.

This case conies before us on an appeal from an order made at special term overruling a demurrer to the complaint, and ordering judgment for the plaintiff. The defendants insist that this court has no jurisdiction of the action, claiming that section 6 of Laws of 1867, chapter 586, in all actions against the mayor, aldermen, &c. of the city of Few York, confers exclusive jurisdiction upon the supreme court, and thus precludes this court from entertaining the case. The plaintiff contends that the statute is private and local, and not being set out or referred to in the pleadings, the court will not regard it.

As to private and local enactments, this is the rule. Therefore, whether the sixth section is a public or private and local statute, is the question, not whether the act is private or local in its principal provisions. An act of the legislature may be local and private in many of its provisions, and yet contain an enactment which is neither local nor private (Williams v. The People, 24 N. Y., 406). If a public statute, the courts are bound to notice it. If this court has no jurisdiction of the action, the demurrer must be sustained so far as this particular question has any influence'upon its action. But if for any cause the act itself or this enactment is unconstitutional, then the decision made by the court at special term is right. If the section is unconstitutional it is void, and the jurisdiction of the court remains the same, unaffected by the enactment.

The clause of the section in question provides that hereafter all actions against the mayor, aldermen and commonalty of the city of Few York, shall be brought in the supreme court, which court shall have exclusive cognizance of such actions. The supreme court had jurisdiction of such actions before 1867, but by this provision that jurisdiction is now exclusive. It is enacted not only that all actions against the corporation- shall be "brought in the supreme court, "but that that court shall have exclusive jurisdiction thereof. The legislature intended to effect two purposes: (1.) to confer exclusive jurisdiction upon the supreme court; and (2.) to absolutely take from every other court in the State, in the first instance, the power to entertain any action wherein the corporation of the city of Hew York are defendants.

The enactment is essentially public in its object and purjDOses. We are not without authority upon the question. It has been held in People v. McCann (16 N. Y., 58), that an act local in its general provisions, may contain a section which is public in its character, as contradistinguished from one private or local. That section contained provisions in relation to the courts of oyer and terminer of the State generally. It was held to be a public statute. This principle is approved by Denio, Justice, in Williams v. The People (24 N. Y., 405). Can it be said an enactment referring to one class of criminal cases is public, and another in regard to a class of civil cases is private, when each prescribes a rule by which parties and courts are to be governed, neither imposing either penalty or forfeiture ? I think not.

A further examination of the case may be useful, putting the case in a still stronger light. All courts are bound to look 'to and take notice of provisions touching their powers and jurisdiction, whether found in the constitution or statutes of the State. This court derived its powers originally from the statutes enacted by the legislature-;—its continuance, with the powers and jurisdiction then possessed from the constitution of 1846, “until otherwise directed by the legislature.” There can be no doubt of the power of 'the legislature to add to or take from the power and jurisdiction of the court.. The addition of the last clause of section 6, by way of amendment to the act organizing the court, would deprive the court of jurisdiction of all actions against the city, just as clearly as if it had been in the original statute. Must not the court take judicial notice of the act bringing it into existence, defining its powers, and all provisions enlarging or restricting its jurisdiction % The court of errors, in Morris v. The People (3 Den., 381), in regard to the act declaring the arrears of the salary of a judge of the court of general sessions a county charge, and directing the board of supervisors to-audit and allow it, held it was not an appropriation of money for “local or private” purposes, and there was no force in the objection that it was a bill appropriating the public moneys for ‘ ‘ local or private purposes,” and did not require a two-thirds vote to pass it (Const, of 1821, art. 7, § 9). The same principle was reiterated in Conner v. The Mayor, (5 N. Y. [1 Seld.], 235), changing the mode of compensating the county clerk of New York (among other officials), by the payment of a salary in lieu of fees. “Acts concerning all persons generally are deemed public, as distinguished from private acts, though it be hi regard to a special or particular thing, such as a statute concerning the circuit court, oyer and terminer, woods in forest” (Bac. Abr., tit. Statutes, F).

The same rule is laid down in Williams v. The People. Denio, Justice, says, that an enactment which “prescribes the rule of conduct for all persons, whether residents in the city, or any other portion of the State,” is a public and not a private statute, because incorporated in the same act containing local provisions. There certainly can be no doubt about its constitutionality if it is a public statute. The application of these principles to the case under consideration is obvious.

The order below should be vacated, and judgment ordered for the defendants upon the demurrer, without costs.

Monell, J.

Since the demurrer in this case was de cided by me at special term, my attention has been drawn to the case of The People v. McCann (16 N. Y, 58), which, as a decision of the court of last resort in this State, is controlling upon the only point noticed by me. That case, although cited "by the defendants’ counsel, was not specially called to my attention on the argument of the demurrer at special term. A re-examination of the case upon the appeal from my decision, has led to a careful perusal of the case of The People v. McCann, and as it seems to me to very clearly hold that a provision of a public nature inserted in a local act does not render the latter unconstitutional and void, I am of course bound to follow and adopt the law of that case.

I have no doubt that the provisions contained in section 6 of chapter 586 of the Laws of 1867, standing by themselves, are of a public nature. They relate to actions against the corporation of the city of New York, and confine jurisdiction over such actions to the supreme court. There is, however, no restriction upon the right to sue "by any person having a cause of action, and therefore every person is or may "be "brought within the purview of the statute, though he may not select the forum or tribunal where he will bring his "action. These provisions are not unlike those which in the. People v. McCann were held to "be of a public nature. As the decision of the special term -was placed solely on the ground that the act referred to was a private and not a public statute of which "the court would not take judicial notice, and as that objection is now removed by the authority of the case I have cited, it leaves any other objections to the statute open for examination. I fully concur in the views expressed "by my associate, Mr. Justice Garvin, that the superior court, deriving its jurisdiction and powers wholly from the legislature, may "be deprived of such jurisdiction at the pleasure of the legislature ; and that therefore it was competent for the legislature, to confer jurisdiction over actions against the corporation of the city of New York to the supreme court. I somewhat more at large expressed my views on this subject in the recent case of Burnham v. Acton (see 4 Abb. Pr. N. S.,1).

It has "been suggested that the statute of 1867 is in conflict with the provisions of the constitution, that “ all corporations shall have right to sue and shall "be subject to be sued in all courts in like cases as natural persons ” (Const., Art. 8, § 3), but I think without considering the doubt whether municipal corporations are included in the constitutional provision, that it is very clear that it was only intended to subject corporations to the jurisdiction of such courts as had jurisdiction at the time the corporation was sued, and not to deprive the legislature of the power of diminishing or wholly destroying the powers of any court not created or protected by the constitution. Such power of the legislature cannot be taken from it by implication merely. But corporations are subject to be sued in all courts in like manner as natural persons; and jurisdiction over such persons has frequently been enlarged or diminished by the legislature.

The general power of the legislature over courts of local or inferior jurisdiction was considered in Exp. McCollum (1 Cow., 450, 551), and the power of the legislature was there recognized and sustained.

I concur in reversing the order overruling the- demurrer.  