
    Arthur J. Gormley, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Municipal Courts: Jurisdiction—Municipal Court ot the city of New York — Actions for penalties; Procedure — Transfer to another court or district; Eeview — Judgments and orders reviewable.
    Under the Municipal Court Act (L. 1902, ch. S80) the Municipal Court of the city of New York has jurisdiction of an action to recover a penalty, not exceeding five hundred dollars, given by any statute of the State.
    In an action, brought in the Municipal Court of the city of Next? York in the district of plaintiff’s residence, to recover the statutory penalty of fifty dollars for the refusal of a street railway company operating in the borough of Brooklyn to give plaintiff, a passenger, a transfer, a motion to dismiss the complaint on the ground that the court had no. jurisdiction of the subject-matter was properly denied; and a judgment for plaintiff, the defendant declining to take part in the trial, is not appealable.
    Under section 25 of the Municipal Court Act, defendant had the absolute right, at the time of or before pleading, to apply for a change of venue to the borough of Brooklyn; and it cannot, after judgment in plaintiff’s favor, complain of its failure to exercise that right.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, sixth district, borough of Manhattan, rendered in favor of the plaintiff.
    
      George D. Yeomans, for appellant.
    Harcourt Bull, for respondent.
   Dayton, J.

Action brought October 10, 1905, on verified complaint to recover statutory penalty of fifty dollars incurred in borough of Brooklyn for defendant’s refusal to give plaintiff a transfer. Defendant filed an answer, verified October 17, 1905. Adjournments were had by consent until December 20, 1905. On December 19, 1905, defendant stipulated as evidence that it was lessee of the Brooklyn Railroad Company, subject to any valid objection to the admissibility thereof. Up to the time of the trial no question of jurisdiction had been raised. On the day of the trial (December 20, 1905) the record is as follows: “ The Court: Let it appear that motion was made to dismiss this action on the ground that the defendant, the Brooklyn Heights R. R. Co., is a corporation operating its cars in the Borough of Brooklyn, County of Kings, and that the penalty sought to be recovered can only be recovered in the county where the occurrence took place. It affirmatively appearing from the pleadings that the penalty had accrued in the Borough of Brooklyn, therefore the Municipal Court in the Borough of Manhattan had no jurisdiction. This motion I will deny. Exception for defendant. Defendant’s counsel: I decline to take part in this trial, relying upon my exception to the refusal to dismiss because the court has no jurisdiction of the subject matter.” The plaintiff then proceeded with his proofs and judgment was rendered therein against the defendant for fifty dollars and costs. Defendant appeals from said judgment. If the Municipal Court, borough of Manhattan, sixth district, acquired no jurisdiction, then this judgment is a nullity and must be reversed. By section 1 of the Municipal Court Act, subdivision 7, the Municipal Court of the city of Hew York has jurisdiction in an action to recover a penalty (not exceeding $500) given by any statute of the State. By section 25 of said act, an action of which the Municipal Court has jurisdiction omist be brought in a district where one of the parties resides, and subdivision 4 of that section provides, “ If the district in which the action or proceeding is brought is not the proper district, the action may notwithstanding be tried therein, unless the action is transferred to the proper district before the trial upon demand of the defendant made upon or before the joinder of issues, in writing, or in open court followed by the consent of the plaintiff given in like manner or the order of the court. The demand must specify the district to which the defendant requires the action to be transferred and the court must make the requisite order.” Subdivision 5 of said section requires. that actions to recover penalties prescribed by the local authorities must be brought in the district where such violations occurred. Section 248 of the said act provides that judgment of dismissal shall be granted without prejudice to a new action where it is objected at the trial and appears by the evidence that the court has not jurisdiction; but if the objection be taken and overruled, it is cause only of reversal on appeal and does not otherwise invalidate the judgment. If not taken at the trial it is waived and the court will be deemed to have jurisdiction. Section 983, Code Civil Procedure (chap. 10, tit. 1, art. 2), under the words “ Place of Trial,” provides that an action to recover a penalty must be tried in the county where the cause of action arose; but section 991 of said Code provides that said article is applicable to an action in the Supreme Court. Section 20 of the Municipal Court Act provides that the provisions of the Code of Civil Procedure and the rules and regulations of the Supreme Court, as they may he from time to time, shall apply to the Municipal Court as far as the same can be made applicable and are not in conflict with the provisions of said act; in case,of such conflict said act shall govern. It is apparent that the Municipal Court Act which includes the five boroughs of what is known as Greater Hew York was intended to establish and retain a comprehensive plan of procedure. There is no conflict between the Code of Civil Procedure and the Municipal Court Act as to the question here; but, if there were, the Municipal Court Act must govern and section 25 of said act prescribes defendant’s rights and remedies as to place of trial. It is clear that plaintiff had the right to bring this action in the sixth district, Manhattan, both as to his residence and the subject matter. It is also clear that the defendant had the option and right, at the time of or before pleading, to apply to require that the action be transferred to the borough of Brooklyn and was obligated so to do if it desired the change of venue. If the defendant had defaulted, a valid judgment would have been rendered against it in this action. Vide § 248, supra. The Municipal Court Act gave to the defendant the absolute right to apply to change the venue to the borough of Brooklyn, and it cannot now complain of its failure to exercise that right. Considering the scope and purpose of the Municipal Court Act as a whole, section 248 thereof was intended to be invoked only where evidence during the trial demonstrated absolute lack of jurisdiction. Any other construction would hold that by section 248 the Legislature repealed section 25, an intention not to be implied, because of the passage of said act in its entirety. Mendoza v. Rose, 44 Misc. Rep. 241, relied upon by the appellant, does not seem to apply. Mr. Justice Scott held: Our conclusion is that the right of a loser upon a betting contract to recover the sum lost, in an action as for money had and received, still survives, and is in no wise affected by section 17 of the act of 1895.” It is quite evident that the propositions on this appeal were not the basis of the decision in Mendoza v. Bose.

In my opinion the trial judge was right in denying the motion to dismiss. The judgment, however, having been taken upon defendant’s default, it is not appealable. Kerr v. Walter, 104 App. Div. 45.

Appeal dismissed, with ten dollars costs.

Blanchard, J., concurs.

Gildersleeve, J. (concurring).

The Legislature evidently intended to confer jurisdiction upon the municipal courts coextensive with the boundaries of Greater Hew York, subject to the. right of removal conferred by section 25 of the Municipal Court Act In an action in the Supreme Court for nuisance to real estate, the premises were in the county of New York hut which formerly was a part of Westchester county and it was held that the venue was properly laid in New York county. 158 N. Y. 417. Even if brought in the wrong county, the right is only to have place of trial changed; it is no ground for dismissal. Veeder v. Baker, 83 N. Y. 156.

Appeal dismissed, with ten dollars costs.  