
    Edward McCann, Respondent, v. Anna H. Gerding, Appellant.
    (Supreme Court, Appellate Term,
    October, 1899.)
    City Court of the city of New York — Jurisdiction of the person on the foreclosure of a mechanic’s lien — Code Civ. Pro., §§ 315, 316, 338.
    The territorial jurisdiction of the City Court of the city of New York is limited by the Greater New York charter (Laws of 1897, chap. 378, § 1345) to the city as it existed before June 6, 1895, and, as the mandates of said court can be executed only within the city, the service of a summons, after the passage of the charter, in an action to foreclose a mechanic’s lien upon property in the borough oí The Bronx, upon the owner at her residence in the county of Westchester, Is ineffectual to confer jurisdiction of her person.
    McCann v. Gerding, 27 Mise. Rep. 845, reversed.
    Appeal from an order of the General Term of the City Court, affirming an order of the Special Term of said court, denying the defendant’s. motion to set aside the service of the summons and complaint on the ground that the court had not acquired jurisdiction over the person of the appellant.
    Milton C. Palmer (Louis Sturcke, of counsel), for appellant.
    Joseph Steinert, for respondent.
   Freed maw, P. J.

The action was brought in the City Court of New York to foreclose a mechanic’s lien upon appellant’s real property, situate in the borough of The Bronx, of the city of New York, upon which the sum of $158, and interest, was due.

Appellant resides in the town of Yorktown in the county of . Westchester, and at that place was served with the summons and complaint. She appeared specially, and moved to set aside the service of the summons and complaint on the ground that such service upon her in Westchester county was void, and that no jurisdiction over her person had been acquired by reason of such service. The motion was denied at a Special Term of the City Court, and the order denying the motion was affirmed by the General Term of said court. The appellant thereupon appealed to this court.

The court now known as the City Court of New York has undergone many changes. Originally it was a Justice’s Court. By chapter 71 of the Laws of 1819 its name was changed to the Marine Court of the City of New York. As such it possessed some of the attributes of a court of record and was treated by statute as a court of record. Nevertheless, it was held that such was only for the purpose of fully exercising the powers which had been expressly conferred upon it, and that it was not a court of .record in the strict legal sense of the term, like courts of general common-law jurisdiction, and that, consequently, it could create no office, nor appoint any subordinate officer of the court, unless specially authorized by statute to do so. Huff v. Knapp, 5 N. Y. (1 Seld.) 65. So it was held that the Marine Court had but a special and limited jurisdiction, both as to cases and parties and that whoever relied upon the authority of the court, in a case instituted by himself, had to show that the case was one of which it had complete jurisdiction. Ford v. Babcock, 1 Den. 158. By chapter 629 of the Laws of 1872, the Marine Court of the city of New York was declared a court of record, to and for all intents and purposes, and continued with the jurisdiction it then possessed, except as otherwise prescribed, declared and enlarged by said act. By chapter 479 of the Laws of 1875, the jurisdiction of the Marine Court was still further enlarged and regulated. By the Code of Civil Procedure, adopted in 1876, the jurisdiction of the Marine Court, and the modes of proceeding therein, were clearly defined and regulated and many of the provisions of chapter 629 of the Laws of 1872 and of chapter 479 of the Laws of 1875 were thereupon repealed by chapter 417 of the Laws of 1877. Since such repeal all authority for the exercise of any jurisdiction by the Marine Court must be found in the Code of Civil Procedure.

By chapter 26 of, the Laws of 1883 the name of the Marine Court of the city of New York was changed to the “ City Court of New York.” It now remains to be seen what jurisdiction in mechanics’ lien cases the City Court of New York, as the successor of the Marine Court, possesses under the provisions of the Code of Civil Procedure. Section 2 of said Code, in enumerating the courts of record of the State, includes the City Court of New York as one of them. Nevertheless, it was never classified as one of the so-called superior city courts, which, by constitutional amendment of 1894, became consolidated with the Supreme Court, and an attempt made by the Legislature, in chapter 418 of the Laws of 1886, to make it a superior city court, was declared unconstitutional in Hutkoff v. Demorest, 103 N. Y. 377. The jurisdiction of the City Court, since 1883, depended upon the special provisions of title IV of chapter III of the said Code. §§ 315-339. The provisions applicable to the question presented by the present appeal are as follows: Under subdivision 2 of section 315, the court has jurisdiction of an action to foreclose or enforce a lien upon real property in the city of New York, created as prescribed by statute in favor of a person who has performed labor or furnished materials for certain purposes therein enumerated. This jurisdiction is limited, by section 316, to an action in which the amount claimed to be recovered does not exceed $2,000, exclusive of interest and costs. A further limitation is contained in the provisions of section 338, that a mandate of the court (with certain specified exceptions which do not apply here) can be executed only within the city of Mew York. The definition of “ mandate ” contained in subdivision 2 of section 3343 of the Code clearly includes a summons.

Thus, we have a court of record with a clearly defined and restricted jurisdiction. True, in some respects, its jurisdiction is unique. It is the only court among the courts of record of this State which may still issue a warrant of attachment on the ground that the defendant is not a resident of the county. It retains, also, its peculiar jurisdiction in “ marine cases,” and also, with some amendments, the anomalous proceedings in such cases which are adapted only to a Justice’s Court.

In certain specified cases its mandates may run beyond its general territorial jurisdiction. But the unique features of this jurisdiction depend upon their having been retained by the statutory revision which culminated in the adoption of the Code of Civil' Procedure. The commission appointed for that purpose made few changes respecting the jurisdiction of the Marine Court, but endeavored to attain greater clearness and simplicity than the original statutes afforded, without substantially affecting their meaning and practical operation. But, after all, the practical result is that the City Court of Mew York of the present day, although enumerated as a court of record, is only a local statutory court of inferior jurisdiction. As to such a court the rule is that, in the absence of an express statutory grant of power to the contrary, the jurisdiction must be exercised within the locality, and that its-process cannot be executed outside of the locality. 22 Am. & Eng. Ency. of Law, 115, and cases there cited; Hoag v. Lamont, 60 N. Y. 96; Geraty v. Reid, 78 id. 64; People v. Upson, 79 Hun, 87; Pierson v. Fries, 3 App. Div. 418; Baird v. Helfer, 12 id. 23; Ziegler v. Corwin, Id. 60.

In Mehrbach v. Partridge, 9 Misc. Rep. 209, it was held, even by the General Term of the City Court, that a summons issued by said court can only be served in the city of Mew York,- and that service on the defendant in the county of Westchester was a nullity.

And by the act of 189Y, known as the Greater Mew York charter, which continued the City Court, with the same powers and jurisdiction as it then possessed, it was expressly provided that, as regards the said City Court, the word “ City ” shall he construed to mean and apply to the territory within the city of Hew York as it existed and was constituted prior to the 6th day of June, 1895.

After a most careful and exhaustive examination, I have been unable to discover any statutory provision which, either expressly or by necessary implication, enables the City Court to exercise jurisdiction over the person of a defendant, in an action to foreclose a ’mechanic’s lien, where the summons and complaint in the action were served outside the territorial jurisdiction of such court. Sections 3399 and 3401 do not help the respondent. Section 3399 confers jurisdiction over actions for the foreclosure of a mechanic’s lien and for the recovery of a money judgment against a person liable for the debt upon which the lien is founded, upon all courts which have jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt. So far as the City Court is concerned, this section does not add anything to subdivision 2 of section 315, by which jurisdiction in mechanics’ lien cases is specifically conferred upon it.

This section, as well as'subdivision 2 of section 315, confers jurisdiction upon the court as to subject-matter, and neither relates in any way to jurisdiction over the person of the defendant. As the City Court has no jurisdiction, except what the statute has conferred upon it, it follows that, without these sections, or either of them, the City Court would not have jurisdiction in mechanics’1 lien actions, even in case its process was served upon the defendant within the city. If it were true, as contended on behalf of the respondent, that section 3399 authorized the service of the court’s process in any part of the State, there would be no need for section 3404, which specifically gives the inferior local courts, not of record, power to send their process, in such cases, into any part of the State.

In the case of the City Court no such enabling statute exists. Whether this is the result of design or oversight, is immaterial. On the contrary, section 358 expressly provides that, except in certain cases therein enumerated, and in which an action to foreclose a mechanic’s lien is not included, “ a mandate of the court can be executed only within the city of Hew York.” In such case the doctrine of “ mumeratio unius est exclusio alterius ” applies, and the decision of Raven v. Smith, 148 N. Y. 415, does not apply. Moreover, a careful reading of the opinion in the case last referred to will show that the defendant’s contention was not that the County Court had not acquired jurisdiction over his person because he had been served outside of the county (for, by reason of section 347, there could hardly be any doubt as to that), but that the County Court had not jurisdiction over the siibject-matter because he was not a resident of the county. The case does not hold that, even if section 347 did not exist, the County Court could send its process into any part of the State, as long as it had jurisdiction over the subject-matter. Even in the case of the former superior city courts the authority to serve their process and writs outside of their territorial limits did not arise by implication, but was expressly conferred by statute. See Landers v. S. I. R. R. Co., 53 N. Y. 450-452, and Laws of 1873, chap. 239, § 11. ¡Nor does section 3401 sustain the service made in the case at bar, for it cannot be held that it contains a repeal, by implication, of the express provision of section 338 that, except in certain cases therein enumerated, and in which an action to foreclose a mechanic’s lien is not included, a mandate of the City Court can be executed only within the city of ¡New York.”

, There being no statutory authority for the service of the summons as made in this case, the order of the General Term of the City Court should be reversed, with costs and disbursements, and appellant’s motion to set aside the service of the summons should be granted, with ten dollars costs.

Order of the General Term of the City Court reversed, with costs and disbursements, and motion of appellant to set aside service of the summons granted, with ten dollars costs.

Leventbitt, J., concurs.

MacLean, J.

(concurring). Inasmuch as the power of the City Court, although denominated a court of record, are solely statutory, and it is provided (§ 338, Code Civ. Pro.) that its mandates, which a summons is to be deemed to be (§ 418, Code Civ. Pro.), can be executed only within the city of ¡Nbw York, i. e., as that city existed prior to the 6th day of June, 1895 (§ 1345 of the Greater ¡New York Charter), the service of the summons herein in the county of Westchester was futile and should have been set aside.

Order reversed, with costs, and motion granted, with ten dollars costs.  