
    Kundolf against Thalheimer and others.
    County courts have not jurisdiction of an action for an assault and battery, although the damages sought to be recovered do not exceed five hundred dollars, and all the defendants reside in the county where the action is brought at the time of its commencement.
    Such an action is not a special case within the meaning of art. 6, § 14, of the constitution; and therefore the statute purporting to confer jurisdiction therein upon the county court is void.
    It seems that the county court has not jurisdiction in any of the ordinary common law actions.
    Action to recover damages commenced in the county court of Monroe county in February, 1853. The complaint alleged that on the 2d day of January previous, the defendants, at the city of Rochester, assaulted and beat the plaintiff, whereby he sustained damage to the amount of five hundred dollars, for which sum and costs he demanded judgment. The defendants appeared in the action and answered the complaint. The answer denied the complaint, and as a further defence alleged that the defendants were engaged in retaining the possession of a church in Rochester, and in preventing improper and disorderly persons from entering it and that the plaintiff unlawfully attempted to enter the church and assaulted the defendants, and that they committed the wrongs complained of in resisting him. It did net appear from the complaint or answer that the defendants or either of them were residents of the county of Monroe, or where they resided.
    The record showed that the action was tried in the county court in September, 1853, and a verdict rendered against the defendants for fifty dollars damages; and that, judgment for this sum, with the costs of the suit, was perfected in that court. The defendants appealed from the judgment to the supreme court. The appeal was heard at a general term of that court sitting in the 7th district, and the judgment of the county court was affirmed. (See 17 Barb., 506.) The record contained nothing but the complaint and answer, and the judgment in the county court which recited the verdict, with the notice of appeal to the supreme court and the judgment of affirmance therein. The defendants appealed to this court.
    
      F. Kernan, for the appellants, insisted :
    1. That the statute (Code, § 30), conferring jurisdiction upon county courts in actions for assault and battery, was unconstitutional. (Constitution of New-York, art. 6, § 14.) 2. That if the statute was valid, then the county court was as to these actions a court of special and limited jurisdiction; and as the record did not show that the defendants were residents of Monroe county at the time the action was commenced, the judgment was void and should be reversed on" this ground. (Code, § 30, subd. 1; Frees v. Ford, 2 Selden, 176.)
    
      Wm. S. Bishop, for the respondent, insisted :
    That an action of assault and battery for damages to a limited amount, against persons only who resided in the county where the action was brought, was a special case within the meaning of the constitution. As to the second point made for the appellants, he insisted upon the same points relied upon by the respondents in the supreme court, which will be found in 17 Barb., 507.
   Gardiner, Ch. J.

The constitution declares, that “ the county court shall have such jurisdiction in cases arising in justices’ courts, and in special cases, as the legislature may prescribe; but shall have no original civil jurisdiction, except in such special cases” (art. 6, § 14). In other words, the legislature may confer on county courts unlimited original civil jurisdiction in special cases. The action in this instance was for an assault and battery, which the plaintiff claims, and the supreme court has decided to be a special case within the meaning of the constitution. Whether this construction is justified by the spirit and intent of that instrument, is the question now presented.

The word “special” is obviously used in the clause referred to as a word of limitation. The framers of the constitution never designed to confer upon the legislature the power to grant original and unlimited jurisdiction to county courts in all cases, or they would have said so by omitting the qualification annexed to the power. It is equally obvious to my mind that they did not intend that a case should become special by being designated as such by the legislature, as this would indirectly confer the authority, the exercise of which directly was prohibited. Respect for the convention and the high character of its members will not admit the supposition that their object was to impose a formal article upon the people, which in terms was restrictive of the legislative power, but in reality meant something else ; or, at most, created a verbal distinction which could only embarrass those whose duty it might be to interpret it. We are therefore bound to inquire if there is not something more than a distinction, merely nominal, between the “ cases” and “ special cases” mentioned in this article, to be ascertained by a fair construction of its language.

The primary meaning of the word case, according to lexicographers, is cause. When applied to legal proceedings it imports a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. In this, its generic sense, the word includes all cases, special or otherwise. At the forming of the constitution, independently of the general division of cases into those cognizable in equity and those at law, the latter were by the common law grouped into different species; each of which, as a general rule, was designated by the leading fact or incident which was the cause or ground of the action of the court in that particular species of case, as debt, assumpsit, trespass, &c. But because each case belonged to a species, this, it is hardly necessary to say, did not make it a special case; for in that sense, not only all cases but all things are special. The primary signification of the word “ special” is, “ designating a species or sort;” whether we adopt this meaning or that of “particular,” “peculiar,” “noting something more than ordinary,” or “ appropriate, designed for a particular purpose,” or “ extraordinary and uncommon,” in all which senses the word is used, is perhaps not very material. The constitution, as we have seen, does not by the term “ special cases,” refer to every species of case, for this construction would annul the limitation on the power of the legislature 'altogether; but it designates or was designed to designate a particular “ sort,” possessing certain characteristics which distinguish them from those ordinary cases which the common law had arranged and classified ; cases which are extraordinary in this sense, and “peculiar,” and which in general are authorized by the law to “subserve a particular purpose.”

So much may be inferred from the language of the article; and prior to and at the time of the adoption of the constitution there was a large class of cases answering-to this description, or some part of it, known to the profession and to every well informed layman. Many of them will be found in chap. 8, part 3 of the Revised Statutes, entitled “ of proceedings in special cases,” such as summary proceedings to recover land, rent of demised premises, draining swamps, and proceedings under the insolvent laws, as well as those mentioned in the 11th subdivision of § 30 of the Code. I shall not attempt to enumerate them; it is sufficient that such a class of cases was distinctly recognized in our statutes, and that there was, therefore, a legal subject in case to which the language of this article would apply when the constitution was framed and when it was adopted. Whatever difficulties may arise in discriminating between special cases and others, in particular instances, there can be no doubt that the common law actions of debt and trespass, &c., ought not to be classed with the former.

No man with any claim to legal intelligence would distinguish a suit in either of the above cases as a special proceeding or a special case. If any proceeding known to the law could be called ordinary, usual, and opposed to all that was peculiar, special or extraordinary, it was the common law action of trespass for an injury to the person.

The argument is that this action is converted into a special case, because the legislature has provided that the defendant must reside within the county where the suit is instituted, and has limited the plaintiff’s claim for damages to five hundred dollars. But it is quite obvious that the amount claimed, whether of debt or damages, cannot alter’ the nature of the proceeding, nor is that affected by the residence of the parties. These circumstances may operate upon the court by limiting its jurisdiction; but they do not affect the case when the jurisdiction is established. It is true in this instance, that the legislature has attempted to confer upon the county court a special jurisdiction. But the matter to be ascertained is not what they have done, but what, they were authorized by the constitution to do. If they possessed the power to legislate at" all upon this subject, it must be for the reason that the action of assault and battery, as it existed at the common law, constituted a “ special case” when the constitution was adopted, according to the true intent and meaning of that instrument. If such were its true character then, there would be no restriction upon the legislature, and the extent of jurisdiction to be granted would be a mere question of expediency. According to the argument addressed to us, and to the theory upon which the legislature must have acted in assuming to pass the law in question, every case arising in a. justice’s court must be special. Of course, the authority to confer jurisdiction in special cases would include them without further specification. But the convention in this article have distinguished between “ cases” arising in that court, and “ special cases” in which the county court could be clothed with original jurisdiction, by omitting the prefix “ special,” in reference to the first class, and annexing it to the other.

The framers of the constitution understood that an action , of debt, in a justice’s court, was as much an ordinary common law action as when commenced in a court of general jurisdiction. It is obvious that they did not suppose that an action to enforce a promissory note for five dollars was more “ peculiar and extraordinary,” and therefore special, than if the assumpsit was for one thousand. And after some reflection I am unable to distinguish between an assault and battery committed upon a resident of the city of New-York, and the same injury inflicted upon a resident of any other place, in all that can give character to a legal proceeding for redress.

I think that the people have said to the legislature, by their ratification of this article, you shall have authority to confer unlimited original civil jurisdiction upon the county courts, in the special cases now existing, or which may hereafter arise, in the fail-exercise of your general power of legislation. All other “cases” now recognized by the law are excepted from this grant of power; and as to them you are prohibited from vesting that court with any such jurisdiction, either general, or special and limited. Now there were “cases” which fell within this exception when the constitution was adopted, or the article is not merely useless, but insensible; and if the cause of action spread upon this record was not one of them, it is incumbent upon those who affirm this, to point to any case in the range of the law which was within the exception. But if the action of assault and battery was a case excepted, it is impossible that the legislature could convert it into a special one by the grant of a limited jurisdiction to the county court in respect to it, when they were expressly forbidden to confer, any jurisdiction whatever. And yet this is substantially the position occupied by the plaintiff. The exercise, by the legislature, of a power not granted them is first used to turn the old action of trespass for an assault and battery into a “special case;” and the special case, thus created, is then made the basis to uphold the action of the legislature.

I am of the opinion that the judgment of the supreme court should be reversed. The constitution is far from being perfect; but it cannot be amended in the mode attempted, without the establishment of a principle that would set aside all restriction upon the legislative power.

Hand, J.

The defendants pleaded to the merits of the action and went to trial thereon, and made no objection on the trial that the complaint did not allege that they resided in the county. By the statute, the court had no jurisdiction unless they did reside in the county. But as this is a question of the jurisdiction of the person, I am inclined to think that, after pleading to the action, issue, trial, verdict and judgment, the defendants cannot now avail themselves of this objection for the first time. Frees v. Ford (2 Seld., 176), it is true, was on demurrer to the pleas, and the defect in the declaration or complaint in such cases must be one of substance ; but the pleas in that suit were, in truth, nothing more than demurrers to the complaint in effect. But the difficulty in this case is, that it does not appear that the county court had jurisdiction of the subject matter ; and if it had not, that court could not obtain jurisdiction, even by consent.

The constitution of this state declares that, “ the county court shall have such jurisdiction in cases arising in justices’ courts, and in special cases, as the legislature may prescribe; but shall have no original civil jurisdiction, except in special cases.” (Art. 6, § 14.) Here is a positive interdiction against these courts having original civil jurisdiction, except in special cases. This action, before the Code, was a common law action, and one of the earliest in use; and if the legislature could not give these courts jurisdiction of it before, it is hardly to be supposed that the Code has changed the character of the constitution in this particular; if it have, then all actions since the Code have become “special cases.” On the contrary, the Code has divided all remedies into “ actions” and “special proceedings.” I cannot think that limiting the amount in controversy, and prescribing the class of persons that may become suitors, make the action a special case within the clause under consideration. It is said the legislature has determined what are special cases. But it had no power to make that a special case which was not so when the constitution was adopted. Suits at law do not become special cases merely by calling them so. No doubt the 31st section of the judiciary act embraces this case if the defendants resided in the county of Monroe. But many of the members of the legislature then had doubts, and others thought the section should have been amended by striking out the last part of it, in which is included the action of assault and battery. In truth, however, the views of individual legislators, or the speeches of members of the convention, do not shed much light upon the subject.

Looking at the language of the clause of the constitution which we have read, and also at art. 14, I think it was not intended to give to these courts any original jurisdiction in common law actions. Perhaps it may be different in equity; for the legislature is authorized to confer upon the county judge equity jurisdiction in special cases. (Art. 6, § 14, subd. 4.) And the range of “ special cases” may be greater in equity than at law; what are special cases not being there so well defined as at law. But that question is not now before us. It has been said that “ cases,” here, is synonymous with “actions.” (5 Barb., 169.) I do not see how the use of the words “ special actions” would have obviated the difficulty; but the word “ action” was not used, and it does not appear that a judicial proceeding by action was intended. It is said partition stands upon the same ground. This I am not prepared to admit, especially as the law stood in 1847 ; but if that be so, improperly assuming jurisdiction in another case does not aid the matter.

Suppose the legislature had enacted that one of the parties should be a resident of the state, or of age, and that tire sum demanded should not exceed $100,000; if common law actions are to be turned into special cases in this way, can the courts say as matter of law that $2000 is, and $100,000 is not, a special case ? Or that residence of all the defendants in the county makes the action a special case, and the residence of one of the parties in the state does not ? If particulars of this nature may constitute a special case, may not the legislature decide as to the degree ? When the organic law declares, in emphatic and clear language, that these courts shall have no original civil jurisdiction, except in special cases, something real was designed; and there should be no effort to abrogate the injunction, or to fritter away the constitution while seeming to acquiesce. Full force and effect should ever be given to the constitution of the state. It is probable that it would be to the advantage of the community to sustain this jurisdiction; but we are not at liberty to consult convenience or even supposed advantage in such a case. Unlike the boasted constitution of the mother country, ours is a written fundamental law, establishing and organizing government, and declaring certain principles or rights, and sustaining and controlling the political condition of the state; and its provisions cannot be disregarded by the legislature or the courts. There is perhaps no fixed legal meaning to the phrase “ special cases,” per se. It occurs in works on practice; as a “ special case”" in the nature of a special verdict (Tidd, 808); and under a recent English statute, a “ special case” may be made to take the opinion of the court. (3 Chit, G. Pr., 780.) And one of the chapters of the Revised Statutes is entitled, “ Of proceedings in special cases,” and it includes replevin; but most of it provides for the cases which are really special, or for proceedings which may be deemed special, though incidental to a common law action. (2 R. S., ch. 8.) But the words are used in this case in their ordinary sense, as contra-distinguished from actions; and this is in consonance with the general plan of the judiciary system. I think we cannot sustain the jurisdiction of the inferior court in this case, without violating the spirit of the constitution ; and that the judgment should be reversed.

Denio, Johnson, Crippen and Dean, Js., concurred in reversing the judgment, on the ground that the statute conferring jurisdiction on county courts in actions of assault and battery was unconstitutional.

Ruggles and Marvin, Js., took no part in the decision.

Judgment reversed  