
    John Carroll, Resp’t, v. John Langan, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 15, 1892.)
    
    Supplementary proceedings—Recorder op Albany—Jurisdiction.
    The power conferred on U’e recorder of the city of Albany by chap. 150, Laws 1849, as amended by chap. 284, Laws 1872,' to act in proceedings supplementary to execution, is a power to be exercised only within that city.
    
      Appeal from judgment in favor of plaintiff entered upon verdict.
    
      J. R. Langan {Hugh Reilly, of counsel), for app’lt; Myers & Nor■ton {Join T. Norton, of counsel), for resp’t.
   Putnam, J.

Judgment was obtained by defendant in the supreme court against plaintiff, a resident of Rensselaer county, ■on February 7, 1887, and entered in Albany county, where defendant resided. Execution was issued upon said judgment in Rensselaer county and returned unsatisfied to the Albany county •clerk’s office. On January 15, 1890, the recorder of the city of Albany made an order in said action in supplemental proceedings requiring plaintiff to appear before a referee in Rensselaer county to be examined. Plaintiff failing to appear, the recorder issued an •order requiring him to show cause at chambers in the city of Albany why he should not be punished as for contempt. Plaintiff .appeared and objected to the .jurisdiction of the recorder, who made an order adjudging him in contempt, under which a warrant -was issued to the sheriff of Rensselaer county, by virtue of which plaintiff was arrested and imprisoned.

This action was then brought for false imprisonment. The plaintiff obtained a verdict, the court on the trial holding that the recorder had no power to make the order under which plaintiff was imprisoned. The learned judge who presided at the trial afterwards, on a motion for a new trial, examined the question involved carefully and wrote an opinion in which he adhered .to his views expressed on the trial.

He held, under the authority of the case of Hayner v. James, 17 N. Y., 316, that the legislature could confer upon the recorder of "the city of Albany the power granted by § 10, chap. 150, of the Laws of 1849, as amended by § 10, chap. 284, Laws of 1872; to be exercised, however, only in the city of Albany. A statute conferring a similar power upon the recorder of Troy, which was considered in the case of Hayner v. James, supra, expressly limits the power of the recorder to act “ within said city.” No such limitation is contained in the acts of 1849 and 1872, supra, as to the recorder of Albany. But the learned justice in the court below was of opinion that such limitation is to be implied, and that the act does not extend his jurisdiction to the county of Rensselaer.

Prior to the adoption of the constitution of 1846, the recorder •of the city of Albany, by virtue of his office, was a supreme court •commissioner, and as such exercised the powers of a judge of the .supreme court at chambers. See 2 R. S., 281, § 32; 289, § 18

The constitution, however, art. 14, § 8, abolished the office of ■supreme court commissioner and divested the recorder of his power as such conferred upon him by the former statute. See Nash v. People, 36 N. Y., 609 to 615; Renard v. Hargous, 13 id., 259.

It is true, as claimed by appellant, that the abrogation of the office of supreme court commissioner did not annihilate the powers and duties that appertain to it These powers could be bestowed by the legislature upon other classes of officers brought into existence or permitted to exist by the constitution, as held in Hayner v. James, supra. Therefore, the legislature could confer upon the recorder of Albany the same powers as he formerly had as a supreme court commissioner, except as prohibited by "the constitution.

Section 10 of the act of 1849', as amended in 1872, is as follows: “Section 10. The recorder of the city of Albany shall have power to do and perform all the acts and duties that may by law, or according to the rule and practice of the supreme court, be done and performed by a justice of the supreme court at chambers, including proceedings supplemental to execution.”

The question is, could and did the legislature confer by said section upon the recorder power to -grant an order in supplemental proceedings to be executed in any part of the state outside of the city of Albany ? If the legislature could confer upon the recorder power to act beyond his local jurisdiction in supplemental proceedings, it could confer power to act in all counties of the state in other than supplemental proceedings.

The constitution of 1846 deprived the recorder of all power as a supreme court commissioner. The subsequent provision (article 14, § 12), providing that all local courts established in any city or village with their present powers and jurisdiction should remain, left the recorder’s court a local court with a merely local jurisdiction. The recorder no longer had the power of a supreme court commissioner. The constitution of 1846 also provided that inferior courts of civil and criminal jurisdiction may be established by the legislature in cities. Under this power the legislature could in 1849 establish in the city of Albany a local court, and doubtless could also confer upon the existing recorder’s court local, civil or criminal jurisdiction. But under the constitution it could do no more.. As held in Geraty v. Reid, 78 N. Y., 67: “ The only authority conferred is to establish local and inferior courts. The jurisdiction of the local court must be exercised witliin the locality, and its process cannot be executed outside of it.” And it was held in that case by the court of appeals that the justices of the peace in the city of Brooklyn cannot be given jurisdiction outside of the city of Brooklyn under the constitution, and that the act of the legislature considered in that case should be so construed as to confer jurisdiction only within said city. In Landers v. The Staten Island R. R. Co., 53 N. Y., 450, it. was held that the legislature could not confer upon the city court of Brooklyn, a civil court, power to act where the defendant resided out of the city or was not served with process therein. And in that case it was held that the power conferred upon the legislature by the constitution to give further civil and criminal jurisdiction to said city courts meant “local ” jurisdiction. See, also, People ex rel. v. Porter, 90 N. Y., 68; Brandon v. Avery, 22 id., 469; Rockwell v. Raymond, 5 N. Y. Sup., 642; Hutkoff v. Demorest, 103 N. Y., 384; 5 St. Rep., 597.

These cases, and many others that might be cited, are authorities that the legislature under the constitution could confer upon the recorder of the city of Albany, in 1849, civil jurisdiction to be exercised locally, but not such jurisdiction to be exercised in other parts of the state. See, also, the case of Hayner v. James, supra.

It is claimed, on the part of defendant that the acts of 1849 and 1872, above referred to, confer upon the recorder all the powers of Justices of the Supreme Court at chambers for the whole state. A power extending over the state of New York. That the acts of 1849 and 1872, supra, in fact make him a state officer with powers at chambers only bounded by state limits.

We think the constitution as interpreted by the court of appeals in the cases above and others that might be cited prevents the exercise of such powers by the recorder of the city of Albany. That the acts of the legislature above quoted should be deemed to confer upon the recorder powers to be exercised within the city of Albany and not in other counties of the state. That under well settled principles the act of 1849 should be so construed as not to confer upon the recorder powers to be exercised outside of the city. It is held that where a statute is susceptible of two constructions, both equally reasonable, one of which will render it_ valid and the other void, that the court will accept the former. People v. Terry, 108 N. Y., 1; 12 St. Rep., 773.

So the power conferred on the recorder to act in proceedings supplemental to execution by the acts of 1849 and 1872 should be deemed to be a power to be exercised within this city.

But the appellant claims that the cases above cited and similar authorities do not apply here, because in each of those cases the court whose jurisdiction was questioned was created and established after" the adoption of the constitution, while the recorder’s court existed prior to the constitution, and his powers were continued by the provisions of the constitution that all local courts established in any city or village shall remain until otherwise directed by the legislature, with their present powers and jurisdiction.” The answer is that the recorder’s powers as a supreme court commissioner were not continued by the above quoted provision, being taken away from the recorder by the express language of article 14, § 8.

As above attempted to be shown, when the act of 1849 was passed the recorder, by the constitution itself, was divested of all power as supreme court commissioner, being then a mere local •officer with local jurisdiction, and having no power as a justice of the supreme court at chambers. It makes no difference that •at some former time the recorder was a supreme court commissioner. He was not in 1849. The act of 1849 did not then •continue an existing power in the recorder. It conferred upon him a new power. It was equivalent to the creating of a new court and the cases above cited seem very plainly to apply.

We hence conclude that the view taken by the judge at the special term was correct and that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.  