
    The People of the State of New York ex rel. Antonio Gegliardi, Respondent, v. Samuel C. Miller, Sheriff of the County of Westchester, Appellant. James Stafford, Warden or Jailer of the County Jail of Westchester County, and Philip Stromberg, Appellants.
    
      Justice of the peace in the city of Mount Vernon —jurisdiction of over an action in which a non-resident is a party.
    
    The effect of sections 53 and 230 of the charter of the city of Mount Vernon (Laws of 1892, chap. 182) is to leave the city of Mount Vernon still a town, so far as the jurisdiction of its justices of the peace is concerned, so that that jurisdiction remained subject to regulation by any general legislation which might be enacted regarding the jurisdiction of justices of the peace in towns.
    Consequently, under subdivision 5 of section 2869 of the Code of Civil Procedure, a justice of the peace in the city of Mount Vernon has not jurisdiction of an action brought in his court by a resident of the city of New York, which adjoins the city of Mount Vernon, against a defendant, a resident of the city of Yonkers.
    Appeal by Samuel 0. Miller, sheriff of the county of Westchester, and others, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 20th day of July, 1903, sustaining a writ of habeas corpus theretofore granted upon the application of the relator and (discharging one Orazio Gegliardi from imprisonment under an execution issued against his person by a justice of the peace of the city of Mount Yernon.
    The petition in this case was made by Antonio Gegliardi on behalf of his brother Orazio Gegliardi.
    
      Max D. Steuer, for the appellants.
   Willard Bartlett, J.:

Philip Stromberg was . a'resident of the city of Mew York. Orazio Gegliardi was a resident of the city of Yonkers. Stromberg brought an action against Gegliardi before a justice of the peace in the city of Mount Vernon. The justice rendered judgment against Gegliardi and issued an execution against his person, upon which Gegliardi was committed to the county jail of Westchester county. The county judge, upon a writ of habeas corpus, has discharged Gegliardi from imprisonment under this execution ; and Stromberg, the plaintiff in the execution,; has appealed. The sheriff of Westchester county arid the warden of the county jail have joined in the appeal.

Section 53 of the charter of the city of Mount Vernon (Laws of 1892, chap. 182) provides as: follows: “ The justices of the peace -elected under the provisions of this act, shall have all the powers ;and jurisdiction, discharge the duties, and be entitled to the fees ¡and compensation of justices of the peace of the several towns in '-this State.”

Section 230 of the charter contains the following provision: The city, except as is otherwise in this act provided, is hereby -created and declared to be one of the towns of Westchester county, ;and all provisions of law not inconsistent with this act, applicable to towns, in the county of Westchester, shall apply to said' city.”

The effect of these two provisions is to leave the city of Mount Vernon still a town, so far as the jurisdiction of its justices of the peace is concerned; so that that jurisdiction remained subject to regulation by any general legislation which might be enacted regarding the jurisdiction of justices of the peace in towns.

Section 2869 of the Code of Civil Procedure, which relates to the localities-in which actions in Justices’ Courts are cognizable, provides that such an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, with certain exceptions, which are specified in five succeeding subdivisions. Subdivision 5 of this section, in the form in which, it was in force on July 20, 1903, when this habeas corpus proceeding was decided, provided that, in any town adjoining an incorporated city, “no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city., unless at least one of the parties to the action is a resident of such town.”

For the purposes of the case at bar, as has already been pointed out, the city of Mount Vernon was to be regarded as a town adjoining the incorporated city of New York. The suit in the Justice’s Court was brought by Stromberg, a resident of such adjoining city. To give the justice jurisdiction, under the subdivision quoted, it was essential, therefore, that the defendant should be a resident of Mount Vernon. He was in fact, however, a resident of Yonkers. This deprived the justice of the peace in Mount Vernon of any power to entertain jurisdiction of Strom berg’s suit against him. The body execution was, therefore, issued without authority, and the county judge committed no error in discharging the prisoner held under it. (See Dodd v. Ecker, 24 App. Div. 613.)

The order appealed from should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  