
    Max Scheidlinger, as Administrator of the Goods, Chattels and Credits of Esther Scheidlinger, Deceased, Respondent, v. Laisser Silber and Divoria Silber, Defendants; Laisser Silber, Appellant.
    (Supreme Court, Appellate Term, Second Department,
    March, 1916.)
    Constitutional law — Municipal Court of city of New York court of record — jurisdiction — statutes — depositions.
    The Municipal Court of the city of New York declared by chapter 279 of the Laws of 1915 to be a court of record is not a new court but a continuation of the district courts of the old city of New York and the justices’ courts of the first, second and third districts of the old city of Brooklyn under a new name.
    The Municipal Court Code, which constitutes the Municipal Court of the city of New York a court of record, is not violative of the inhibition of section 18 of article VI of the Constitution of 1894 that “ No inferior court hereafter created shall be a court of record.”
    It seems, that the Municipal Court Code deprives the Supreme Court of the power of removal of the justices of the Municipal Court of the city of New York which it possesses under section 17 of article VI of the Constitution over justices of inferior courts not of record and vests it in the Senate to be exercised in the manner provided by section 11 of article VI of the Constitution.
    The legislature having power to constitute the Municipal Court of the city of New York a court of record it must be implied that the change effected by the Municipal Court Code legally carries with it a change in regard to the power of removal of the justices of said court as heretofore governed by section 17 of article VI of the Constitution; such construction reconciles the statute and the Constitution.
    A statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and, until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to and reconciliation found impossible, the statute will be upheld.
    Under section 15 of the Mhnicipal Court Code, which declares that “ the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court,” the Municipal Court of the city of New York has power to grant an ex parte order for the examination before trial of a defendant, but an order denying a motion to vacate such an order is not appealable (Municipal Court, Code § 154) and an appeal therefrom will be dismissed.
    Appeal from an order made by a jnsti.ee of the Municipal Court of the city of New York sitting in the third district, borough-of Brooklyn, denying a motion to vacate and set aside an ex parte order for the examination before trial of one of the defendants, the defendant so ordered to be examined alone appealing.
    Max Schleimer, for appellant.
    Samuel Scheindlinger, for respondent.
   Kapper, J.

By chapter 279 of the Laws of 1915, the legislature enacted the Municipal Court Code defining the jurisdiction of the Municipal Court of the city of New York. Section 1 provides that the court “ shall be a court of record. ’ ’ Section 15 declares that ‘‘ the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court.” No express provision for the taking of the deposition of a party before trial is contained in the act. Section 870 of the Code of Civil Procedure provides for the taking of such a deposition in an action “ pending in a court of record.” Hence, the power to order such an examination in an action pending in the Municipal Court must find support wholly in the general application of this Code provision to courts “ of record.” We have reached the conclusion that the statutory authority for the making of the ex parte order assailed is ample and complete, and it would scarcely be necessary to say anything in affirming the order refusing to vacate it were it not for the fact that the appellant challenges the constitutionality of the new Municipal Court legislation upon the ground that the legislature was powerless to constitute the Municipal Court of the city of New York a court of record; and the first sentence of section 18 of article VI of the Constitution is invoked to that end. It is as follows: “ Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no inferior local court hereafter created shall be a court of record.” The question raised is beyond discussion. The status of the Municipal Court of the city of New York has been determined by the Court of Appeals in Worthington v. London G. & A. Co., 164 N. Y. 81, and in Routenberg v. Schweitzer, 165 id. 175, in both of which it was held that such court is not a new court, but instead is a continuation of the District Courts of the old city of New York and the Justices’ Courts of the first, second and third districts of the old city of Brooklyn under a new name. The courts, so continued, existed long prior to the Constitution of 1894, and, as there was no constitutional inhibition against the creation by the legislature of an inferior local court as a court of record prior .to 1894, restraint against the legislative action now attacked is wholly wanting. The inhibition contained in the sentence of the Constitution quoted ‘ ‘ was restricted to future courts, ’ ’ in other words, “to cou'rts subsequently created.” See Lewkowicz v. Queen Aeroplane Company, 207 N. Y. 290, 295, 297. The only restriction against legislation affecting inferior local courts created prior to 1894 is that neither equity jurisdiction nor any greater jurisdiction in other respects than is conferred upon County Courts shall be given to the Municipal Court. Const, art. 6, § 18; and see Lewkowicz Case, supra. It was the view of Judge Haight in the Worthington Case, supra, 92, that, as the Municipal Court is a continuation of the District Courts and Justices’ Courts referred to, plenary power for legislative control is found in section 17 of ¿rticle 6 of the Constitution, which provides that “Justices of the peace and district court justices may be elected in the different cities of this State1 in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law.” Whether it was within the contemplation of the framers of the Constitution that courts of justices of the peace could lose their identity as such and be vested with this augmented jurisdiction and power is wholly immaterial, in view of the authority of the legislature, with the wisdom of whose action within the purview of its power the courts may not interfere. Similar legislation affecting the City Court of Albany, which was once a Justice’s Court, was upheld in Failing v. Grounds, 160 App. Div. 71.

The appellant further argues that the making of the Municipal Court a court of record deprives the Supreme Court of the power of removal of the justices of that court which it undoubtedly possesses over justices of inferior courts not of record. Const, art. 6, § 17. The power of removal of judges of the Court of Appeals and justices of the Supreme Court is vested in the legislature; while all other judicial officers are removable by the senate, upon the recommendation of the governor, excepting in the case of justices of the peace and judges or justices of inferior courts not of record. Const, art. 6, § 11. It is, perhaps, unnecessary to a decision here to determine where the power of removal of the justices of the Municipal Courts now resides; but, it seems to me that the legislation under discussion has legally taken this power from the Supreme Court and vested it in the senate to be exercised in the manner provided by section 11 of article 6 of the Constitution. It was said in Matter of Deuel, 116 App. Div. 512, 515: “An enactment creating a court of record for a particular purpose, as for the purpose of removing its judges, and not of record for every other purpose, would be a manifest absurdity.” And, of course, a like absurdity would be manifest if the Municipal Court were a court of record for all purposes save that of the removal of its justices. We have seen, upon the highest authority, that the legislature had the power to constitute the Municipal Court of the city of New York a court of record, for the reason that it was not a court created since the adoption of the Constitution of 1894 but was a continuation of the District and Justices’ Courts within the territory of that city as now constituted. This power being admitted, it must be implied that the effected change legally carries with it the change in regard to the power of removal of the justices of the Municipal Court as heretofore governed by section 17 of article 6 of the Constitution. This construction reconciles the statute with the Constitution. A statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation found impossible, the statute will be upheld. People ex rel. Henderson v. Board of Supervisors of Westchester County, 147 N. Y. 1, 2.

As we have reached the conclusion that the justice of the Municipal Court was not without power to make the order for the examination of the defendant, we think that the order appealed from, denying the motion to vacate that order, is not appealable under the Municipal Court Code, section 154, and that the appeal should, therefore, be dismissed, with ten dollars costs.

Callaghan, J., concurs.

Blackmar, J.

I concur in the prevailing opinion to the effect that the act of the legislature making the Municipal Court a court of record is valid; but am not satisfied that it necessarily follows that such act results in depriving the Supreme Court of the power of removal of the justices. The operation of the act may, it seems to me, be limited by the other constitutional measure that the justices must be removed by a court. Any other view gives to the act the effect of nullifying that plain provision of the Constitution. I vote to declare the act constitutional without attempting to pass on the question whether the effect of it is to make the justices removable only by the senate instead of by the Supreme Court.

Appeal dismissed, with ten dollars costs.  