
    (44 Misc. Rep. 81.)
    RAYNES v. BLOOM.
    (Kings County Court.
    June, 1904.)
    1. County Court—Jurisdiction—Action against Nonresident.
    Code Civ. Proc. § 2934, provides that, on issue joined before a justice in any of the towns in the county of Kings, in which the judgment demanded exceeds $100, the defendant may apply for an order removing the action to the County Court of the county of Kings. Const, art. 6, § 14, provides that “County Courts shall have the powers and jurisdiction they now possess.’’ Held, that the County Court of Kings county has jurisdiction of an action in a Municipal Court of the city of New York, in the borough of Brooklyn, against a nonresident of Kings county, removed by defendant to the County Court, where the Municipal Court had jurisdiction.
    Action by Harry C. Raynes against Samuel Bloom. .Verdict for plaintiff.
    Motion for new trial denied.
    E. P. Htmniwell and Jacob Levy, for plaintiff.
    Einstein, Townsend & Guiterman, for defendant.
   CRANE, J.

This action was brought in the' Municipal Court in the borough of Brooklyn to recover the sum of $500, brokerage commission ; and, upon the application of the defendant, under the Municipal Court act, an order was made removing the case into this court. Upon the trial it appeared that the cause of action arose in the borough of Manhattan, and it affirmatively appeared, and is beyond dispute, that the defendant resided in the borough of Manhattan, and never within the county of Kings. By the answer in the County Court and upon the trial the objection was raised that the County Court had no jurisdiction, because the defendant was a nonresident of the county; and, a verdict having been rendered for the plaintiff, the defendant moves for a new trial on this ground. It is claimed by the plaintiff that the want of jurisdiction has been waived by the removal of the case into the County Court by the defendant, and that, as the Municipal Court had jurisdiction in the first instance, so has this court. It is insisted that the case of Vogel v. Banks, 60 App. Div. 459, 70 N. Y. Supp. 1010, has settled this question, and that this court should be bound by that decision.

• If this court has not jurisdiction over the cause of action, the defect cannot be waived by any act of the parties, nor can jurisdiction be conferred by their consent; and, although it is stated in the Vogel Case that the removal from the Municipal Court into the County Court estops the defendant from raising the question of the jurisdiction of the County Court, with all due respect I do not think waiver or estoppel to be the correct ground for that decision, for the reasons stated in my opinion in the case of Perlman v. Gunn, 41 Misc. Rep. 166, 83 N. Y. Supp. 986. If the County Court, has not jurisdiction of the cause of action, it can never be conferred by consent, waiver, or any act of the parties. There is a distinction between jurisdiction of the person and jurisdiction of the cause of action. The County Court never had jurisdiction of a cause of action to recover money only, where the defendant was a nonresident of the county.

The earliest constitutional provision in reference to County Courts is found in article 6, § 14, of the Constitution of 1846, reading as follows:

“The County Court shall have jurisdiction in cases arising in Justices’ Courts and in special cases as the Legislature may prescribe and shall have no original civil jurisdiction except in such special cases.”

By this provision it was left to the Legislature to prescribe the County Court’s jurisdiction, and thereafter, and on the 12th of May, 1847, an act was passed, known as the “Judiciary Act” (page 319, c. 280), which prescribed and limited the powers of the County Court in actions for money only to cases where the defendant resided within the county. Residence within the county where the action was brought to recover a sum of money only was required in the Civil Codes (Code 1851, tit. 4, § 30; Voorhees’ Code [4th Ed.] 1855, tit. 4, § 30), and these early provisions of the judiciary act have remained, with some changes and modifications, down to the present day. See Code Civ. Proc. 1904, § 340.

The Constitution of 1846 having given the County Court original civil jurisdiction in such special cases as the Legislature should prescribe, and the Legislature having restricted jurisdiction over actions to recover a sum of money only to cases where the defendant resided in the county, such were the powers and limitations of the County Court in this particular when the Constitution of 1846 was amended in 1869-70. By that amendment, article 6, referring to the County Court, read:

“The Coúnty Courts shall have the powers and jurisdiction they now possess, until altered by the Legislature. They shall also have original jurisdiction in all cases where the defendant resides in the county in which the damages claimed shall not exceed one thousand dollars, and also such appellate jurisdiction as shall be provided by law, subject however to such provisions as shall be made by law for the removal of cases into the Supreme Court. They shall also have such original jurisdiction as shall from time to time be conferred upon them by the Legislature.”

This was held in the case of Buckhout v. Rall, 28 Hun, 484, to be a constitutional limitation upon the jurisdiction of the County Court, so that even the Legislature could not enlarge it to a claim for more than $1,000; and the statute of 1880, p. 690, c. 480, extending the court’s jurisdiction to $3,000, was declared unconstitutional. If the Legislature could not thus extend the powers of the court, it likewise could not give jurisdiction over a cause of action for money only, where the defendant was a nonresident of the county; and, if the Legislature could not do it because the court was created by constitutional provision to try certain cases only, how could consent, waiver, or act of the parties or even estoppel, confer jurisdiction upon it in a prohibited case i

The Constitution of 1894 somewhat modified, article 6 of the previous Constitution, by expressly providing that the Legislature could not extend the jurisdiction of the County Court so as to authorize an action therein for the recovery of money only, in which the súm demanded exceeded $2,000, or in which any person not a resident of the county was a defendant. According to the provisions governing the County Court, as above stated, and for the reasons contained in my decision in the case of Perlman v. Gunn, supra, and the cases therein cited, I am convinced that the County Court never had original jurisdiction over a cause of action for a sum of money only, where the defendant was not a resident of the county; and, not having jurisdiction of the cause of action, the acts, consent, or waiver of any or all the parties, or estoppel, could not confer such jurisdiction. See, also, Parkhurst v. Rochester Mach. Co., 65 Hun, 489, 20 N. Y. Supp. 395.

There must be some other and further reason for the decision in the Vogel Case than the opinion states to give the County Court jurisdiction over a cause of action removed to it from a Municipal Court, where that action is for a sum of money, and the defendant a nonresident of the county. Both the Constitution of 1846, amended in 1869, and that of 1894, preserved to the County Courts “all the powers and jurisdiction they now possess,” while the limitations as to amount and residence applied to "“original jurisdiction.” Now, what were the powers and jurisdiction the County Courts possessed prior to 1869 ? As above stated, the- County Court at that time and at no time during its existence had original jurisdiction over an action to recover money where the defendant was a nonresident, but the Constitution of 1846 provided that the County- Court should have such jurisdiction as the Legislature might prescribe, in two instances —first, in cases arising in Justices’ Courts; second, over special cases.- The Legislature by early enactments gave to the County Court certain jurisdiction over cases arising in Justices’ Courts. It provided in the Laws of 1851, and as found in Voorhees’ Code of 1855, §§ 351-371, for review by appeal to the County Court of the justice’s decision.' Later section* 352 was amended in 1862 by providing that on appeal, where the amount claimed exceeded $50, a new trial could be had in the County Court; and this -has remained the law till the present day (Code Civ. Proc. § 3068), and was the law in Kings county till 1893, when, by chapter 380, p. 773, of the Laws of that year, section 2934 of the Code was amended to read as follows:

“When an issue of fact or an issue of law is joined in a justice’s court, or before a justice of the peace in the city of Brooklyn, or in any of the towns in the county of Kings, in which judgment demanded by either party in his pleadings exceeds the sum of one hundred dollars * * * the defendant may, after issue joined * * ® apply to the justice before whom the action is brought for an order removing the action into the County Court of the county of Kings. * * * From the time of the granting of the order the County Court of Kings county has cognizance of the action, and the same shall be tried and determined by said county court as if originally brought therein.”

Strange as it may seem, this is the reading of section 2934 of the Code to-day, although we have not had a justice of the peace or a Justice’s Court in Brooklyn, nor in any towns in Kings county, since consolidation, in 1897, and although the first Greater New York charter provided for Municipal Courts, and removal from them into the County or Supreme Court. However, when the Constitution of 1846 was amended in 1869, the County Courts had jurisdiction upon appeal to try cases originally brought in the Justices’ Courts. What, cases could be brought in the Justice’s Court, and could a nonresident of the county be sued therein?

By 2 Rev.. St. 1829 (1st Ed.) p. 225, pt. 3, c. 2, art. 1, the Justices’ Courts were given certain jurisdiction over cases to recover money; and it was provided that such actions must be brought in the town where either the plaintiff resided or the defendant resided, or, if plaintiff and defendant both be nonresidents of the county, then such action may be brought before any justice of the town in which the plaintiff or defendant may be. Thus the Justices’ Courts in certain cases to recover money had jurisdiction over nonresidents. Worthington v. London G. & A. Co., 164 N. Y. 84, 58 N. E. 102. Upon appeal and a demand for a new trial in such a case the County Court assumed or had jurisdiction to try a case for the recovery of money only, in which the defendant was a nonresident of the county; and this was its jurisdiction preserved by the amended Constitution of 1869, and still remains, outside of New York City. Article 6, § 15, of the amended Constitution of 1846, reads: “The County Courts shall have the powers and jurisdiction they now possess until altered by the Legislature.” The Legislature accordingly, in 1893, proceeded to alter the jurisdiction and powers the County Court had in cases on appeal from the Justices’ Courts in Kings county by doing away with the two trials in certain cases, and permitting removal from the Justice’s Court into the County Court. Thus, instead of having the first trial in the Justice’s Court, and then upon appeal a new trial in the County Court, removal, upon application, was permitted so that the first and only trial would be in the County Court. Laws 1893, p. 773, c. 380; Code Civ. Proc. § 2934. This was according to, and not in contravention of, the Constitution of 1846, as amended. The County Court, therefore, upon such removal from the Justice’s Court, could and might have jurisdiction to try a case brought to recover a sum of money only where the defendant was a nonresident of the county, provided, of course, the Justice’s Court had jurisdiction of the cause and the parties. This act of 1893 did not confer upon the County Court in such cases original jurisdiction over nonresidents prohibited by the Constitution, as it was held in the case of Cook v. Nellis, 18 N. Y. 126, that an action commenced in the Justice’s Court, where a claim of title was interposed, and upon discontinuance recommenced in the County Court pursuant to statute, was not originally brought in the County Court, but in the Justice’s Court. See, also, Clyde & Rose Plankroad Co. v. Baker, 12 How. Prac. 371.

Thus we find that at the time of the adoption of the Constitution of 1894 the County Court of Kings county had jurisdiction over cases removed to it from the Justices’ Courts, even if the actions were for a sum of money only, and the defendant a nonresident of the county; and this jurisdiction was expressly preserved by section 14, "art. 6, of that Constitution. “County Courts shall have the powers and jurisdiction they now possess.”

It was decided in the Worthington Case, above cited, that the Municipal Courts of the greater city of New York were a continuance of the District Courts of the old city of New York, and of the Justices’ Courts of Brooklyn, and had jurisdiction of nonresidents in cases where the District and Justices’ Courts had formerly had it. As the Municipal Court in this case had jurisdiction of the defendant and of the cause, the County Court, upon removal by the defendant, also had jurisdiction, not by waiver or estoppel, but because it always had such jurisdiction, or at least did have it since 1893, and prior to the Constitution of 1894, and such jurisdiction was preserved to it by that Constitution. The provisions of the Municipal Court Act permitting removals to the County Court are similar to, although not the same as, section 3934 of the Code of Civil Procedure.

It follows that the defendant’s motion for a new trial, based upon the assertion that this court has not jurisdiction of the cause, because it affirmatively appears that he is a resident of Manhattan, and not of Kings county, must be denied.

Motion denied.  