
    Frederick Gemp et al. against James Pratt.
    [Special Term.]
    (Decided May 14th, 1877.)
    "The jurisdiction conferred on the Superior City Courts by § 263, subd. 2 of the Code of Remedial Justice (L. 1876, c. 448) over certain transitory actions where the defendant is not a resident of the city where the court is located, and is not personally served with the summons therein, but the cause of action arose in that city, is such as may be conferred on such courts by the Legislature under art. VI., § 12 of the Constitution, providing for the continuance of such courts, with the jurisdiction they then severally had, and such further civil and criminal5 . jurisdiction as might be conferred by law, and such extension of the jurisdiction! of these courts beyond what they had at the time of the Constitution, is not sucln ’• an extension of jurisdiction as has been declared unconstitutional by the Court'. " of Appeals in the case of Landers v. The Staten Island 22. 22. Co. 53 N. Y. 450,, • and Hoag v. Lamont, 60 N. Y. 96.
    The case of Towle v. Cov&'t, 15 Abb. Pr. N. S. 193, distinguished.
    In an action for the agreed price of goods sold and delivered to the defendant in the city of New York,—Held, that this court had jurisdiction, although the-defendant was a resident of Queen’s county and was served with the summons-there. , -
    Motion to set aside the service of the summons and complaint in the action, on the ground that the court had not ' acquired jurisdiction of' the person of the defendant by the-service of the summons and complaint on him in Queen’s-", county.
    The action was for the agreed price of goods alleged iiY the complaint to have been sold and delivered to the defen-" dant at the city of New York.
    The motion was made on-the summons and complaint and an affidavit of the defendant (sworn to May 3d, 1877), in" which he swore that he had never been a resident of the city' and county of New York; that he was a resident of Queen’s county, where he had lived for the last twenty years, and that the summons and complaint had been served on him at Jericho, Queen's county, on April 17th, 1877.
    
      Christian G. Moritz, for the motion.
    
      Charles Mott, opposed.
   Joseph F. Daly, J.

Under section 33 of the Code this-court had no jurisdiction of a merely personal or transitory action, unless the defendant was a resident of the city of New York, or was served with the summons therein. The act of 1873 (chap. 239) conferred jurisdiction over a defendant served with our process in any county of the State, and this-included, of course, actions where the cause of action arose-in the city of New York, but the defendant did not reside? there, as well as actions where the cause of action did not arise, and defendant did notreside in this, city, although jurisdiction was not specifically given in either case, and general language only was used to extend the jurisdiction.

In Landers v. Staten I. R. R. Co. (53 N. Y. 450), the Court of Appeals held that the Legislature had no power to confer on a local court (the City Court of Brooklyn) jurisdiction of a personal or transitory action where the cause of action did not arise in the city where such court was located, if the defendant did not reside or was not served with the summons in such city. The case of Hoag v. Lamont (60 N. Y. 96) was substantially to the same effect.

In Bidwell v. Astor Mutual L. Ins. Co. (16 N. Y. 263), and International Bank v. Bradley (19 N. Y. 245), judgments of the Superior Court of the city of Buffalo, a local court, were sustained, the cause of action having arisen in that city, but the defendants served elsewhere, being non-residents of the city.

But in the case of the Superior Court of Buffalo, and the City Court of Brooklyn, jurisdiction in cases where the cause of action arose in the respective cities where those courts were located, independent of the residence of defendants or the service of the summons, was expressly conferred in terms by the statutes. (As to Buffalo, L. 1854, c. 96, §§ 9 and 10. As to Brooklyn, L. 1870, c. 470, L. 1871, c. 282.)

But in the cases cited respecting the jurisdiction of the Superior Court of Buffalo (16 N. Y. 263; 19 N. Y. 245), the question of the constitutionality of the provisions of law conferring such jurisdiction was not considered ; and in the cases respecting the jurisdiction of the City Court of Brooklyn (53 N. Y. 450; 60 N. Y. 96), there is no express decision that such jurisdiction was properly conferred, but on the other hand no intimation to the contrary.

As I have said, such jurisdiction is not conferred upon the Court of Common Pleas in express terms, but is included in the general enlargement of jurisdiction enacted by the Legislature in 1873. Whatever enlarged jurisdiction conferred by the act of 1873, does not fall within the view of the deeision in the cases'of Landers and Lamont (supra), but may be exercised without violating the spirit of those cases, it is the duty of this court to exercise when suitors require it.

The conferring upon a local court (whose jurisdiction is general and unlimited except as to territory) by the Legislature (under the provisions of article VI., sec. 14), of jurisdiction over personal actions where the cause of action arose in the city in which such court is established, is not such an infringement of the Constitution (ait. VI., § 6) relating to the general jurisdiction of the Supreme Court and the judicial system of the State, as the jurisdiction attempted to be exercised in the Landers case and the Lamont case (supr.a). Where parties who do not reside in the city come there to make contracts, the Legislature may well give to the local courts of the city power to enforce the contract or to entertain an action for the breach of it, even if it be necessary to send its process into other parts of the State in order to summon the defendants to answer. Especially is this the case where the defendants only are non-residents of the city.

The Remedial Code (sec 263, subd. 2) provides in express terms that this court shall have jurisdiction in such cases, and the codifiers state that provision to be, in their opinion, declaratory of the law as it now exists.

The case of Cowle v. Covert (15 Abb. Pr. N. S. 193) does not appear to be a case in which the cause of action arose in this city, and does not, therefore, control.

Motion denied, with $10 costs to abide event of action.  