
    Frank E. Mitchell, Respondent, v. Ludolf G. Schroeder, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    Jurisdiction — of Municipal Court of city of New York — construction of Municipal Court Code — depositions — pleading — Municipal Court Code, § 15.
    The Municipal Court Code which determines the jurisdiction of the Appellate Term on appeals from the Municipal Court of the city of New York neither confers on said court, or any justice thereof, any power to grant an order of examination before trial of an adverse party nor upon the appellate court power to hear an appeal from an order granting or denying an order for such an examination, or granting or denying a motion to vacate such an order; 'and on an appeal from an order denying a motion to vacate an order for the examination of defendant before trial the only question is whether the court below had power to make the order.
    The only reasonable construction of the Municipal Court Code is that the legislature intended to give the Municipal Court of the city of New York no power not expressly or by fair implication given by said Code, and that only those sections of the Code of Civil Procedure which cover matters of practice, pleadings, forms and procedure in the exercise of the powers otherwise expressly or impliedly granted to said court come within section 15 of the Municipal Court Code which provides that, “ Except as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding,” and are applicable to said Municipal Court of the city of New York.
    While the Constitution of the state of New York permits the legislature to change inferior courts, existing at the time the Constitution of 1894 was adopted, into courts of record, it does not permit the legislature to change them into courts of general jurisdiction.
    In section 180 of the Municipal Court Code which provides that “ The provisions of this act shall be liberally construed in furtherance of justice. The presumption of regularity shall attach to the proceedings, judgments, orders and final orders of this court, and every fair intendment shall be made in favor of its jurisdiction,” the words “ and every fair intendment shall be made in favor of its jurisdiction” are obviously intended to be confined to the effect to be given to the records of said Municipal Court and that every fair intendment of fact that may be given to the records shall be in favor of supporting the judgments or orders of the court; where, however, the question to be considered is not whether the jurisdictional facts existed in any given case but solely whether the court has been given certain powers by statute, said quoted words have no application.
    The right to examine an adverse party is purely statutory and the courts have no inherent power to grant an order therefor; the right to such an order cannot strictly be considered as a matter of practice or procedure conferred by section 15 of the Municipal Court Code.
    Appeal by' the defendant from an order of the Municipal Court, borough of Manhattan, fifth district, denying a motion to vacate an order for the examination of the defendant before trial.
    Arthur L. Fullman, for appellant.
    Davis & Mayer (Chester Mayer, of counsel), for respondent.
   Lehman, J.

The defendant appeals from an order denying his motion to vacate an order of examination made by a justice of the Municipal Court. The Municipal Court has been made by the legislature a court of record ’ ’ but it was and still remains a court of limited jurisdiction and has those powers, and those powers only, which have been conferred upon it by the legislature, expressly or by fair implication. The same statute which determines the jurisdiction of the Municipal Court also determines the jurisdiction of this court on appeals from the Municipal Court. That statute nowhere specifically confers upon the Municipal Court, or any justice thereof, any power to grant an order of examination before trial of an adverse party; it also nowhere confers upon this court any power to hear an appeal from an order granting or denying an order of examination or granting or denying a motion to vacate such an order. If the Municipal Court has the power to grant such an order then we cannot pass upon any question of whether this power was correctly exercised; the sole question before us therefore is one of jurisdiction, viz.: has a justice of the Municipal Court the power to grant an order of examination? If a justice of the Municipal Court has no such power then obviously the court had no power to make any order denying the motion to vacate.

The learned justice below has held that since the Municipal Court is a court of record and since section 15 of the Municipal Court Code provides that Except as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court, any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding,” it follows that section 873 of the Code' of Civil Procedure which is generally applicable to courts of record must also apply to the Municipal Court. To test the correctness of this conclusion we must consider three questions. First. Does the Municipal Court Code make other and exclusive provisions for an examination before trial? Second. What, if any, powers has the legislature conferred upon the Municipal Court by making it a court of record? Third. Is an order of examination of a party before trial a part of the “practice” or “procedure” of the Supreme Court within the meaning of the Municipal Court Code?

Article 2 of the Municipal Court Code makes provisions for commissiona to take testimony but the provisions- of that article, with the exception of section 117, are confined to cases where there is ground for belief that the attendance of the witness at the trial cannot be secured. Section 117 of the Municipal Court Code provides for the physical examination of a party who claims damages for personal injuries. It is quite possible that the legislature in making these provisions did not intend to provide that the provisions of the Code of Civil Procedure in regard to the right of examination of adverse parties should not be applicable to the Municipal Court, yet it seems to me difficult to see why the legislature should have made specific provisions for the taking of certain depositions if it considered that the section of the Code of Civil Procedure in regard to these matters should be applicable to the Municipal Court. It is especially difficult to understand why the legislature should, in section 117 of the Municipal Court Code, have provided for a physical examination of an adverse party, if it intended also to make applicable to the Municipal Court the provisions of section 873 of the Code of Civil Procedure which makes a general provision for this- purpose. However, I prefer to rest my decision in this case upon broader grounds than the argument that these provisions of the Municipal Court Code were intended to take the place of the provisions of the Code of Civil Procedure which would be otherwise applicable to the Municipal • Court. At the same time, I think they tend to show that the legislature did not consider that the provisions of the Code of Civil Procedure in regard to examinations before trial were applicable to the Municipal Court. The Constitution of the state of New York permits the legislature to change inferior courts-, existing at the time the Constitution of 1894 was adopted, into courts of record, but it does not permit the legislature to change these courts into courts of general jurisdiction. See Lewkowitz v. Queen Aeroplane Co., 207 N. Y. 290.

In other words, though the Municipal Court may for certain purposes be regarded as a court of record, like the City Court, “ It is such only for the purpose of fully exercising its powers, solely statutory.” See Purton v. Watson, 19 N. Y. St. Repr. 6,11. It follows that even though the Municipal Court be a court of record it still has only such powers as are-granted to it by statute. It is argued, however, that chapter 10, article 2, is by express provision of section 3347 of the Code of Civil Procedure made applicable to all courts of record, and section 870 of the Code also refers to actions in a court of record, and that, therefore, the provisions of that chapter became ipso facto applicable to the Municipal Court as soon as that court became a court of record. There is no doubt in my mind that wherever the legislature has made provision for the organization of courts of record, .or for the effect to be given to the judgments of a court of record, such provisions necessarily become applicable to the Municipal Court when that court became a court of record. Such provisions give the court no additional powers, they merely regulate the exercise of the statutory powers of the court. The question, however, of whether those provisions of the Code of Civil Procedure which do not simply regulate the organization of the courts and the manner of the exercise by the court of powers which are either inherent in the courts or given to them by statute are also applicable to the Municipal Court merely because the legislature has made a general provision that these provisions are applicable to all courts of record presents different considerations. In other words, we may assume that all provisions of the law which define the manner in which a court of record shall exercise its statutory or inherent powers are applicable to the Municipal Court and yet it does not necessarily follow that the legislature intended to confer new powers upon that court not specifically given by the Municipal Court Code. The Municipal Court Code provides in section 180 that “ The provisions of this act shall be liberally construed in furtherance of justice. The presumption of regularity shall attach to the proceedings, judgments, orders and final orders of this court, and every fair intendment shall be made in favor of its jurisdiction.” The learned justice below has, in his opinion, referred to the words ‘1 and every fair intendment shall be made in favor of its jurisdiction ” as an argument in favor of giving a broad interpretation lo the Municipal Court Code and in favor of holding tliát the Municipal Court has jurisdiction wherever there is any doubt as to the meaning of that Code.

I do not think that the legislature had any such intent in using these words. I think that the words are obviously intended to be confined to the effect to be given to the records of the Municipal Court and that every fair intendment of fact that may be given to the records shall be in favor of supporting the judgments or orders of the court; where, however, the question to be considered is not whether the jurisdictional facts existed in any given case but solely the question of whether the court has been given certain powers by statute these words have no application. In considering the meaning of the statute we are bound only by the words of the statute including the words “ The provisions of this act shall be liberally construed in furtherance of justice.” These words, however, furnish us with no guide to the actual intent of the legislature. The legislature unquestionably intended to give to the Municipal Court powers adequate to do justice within the limits of the jurisdiction conferred upon it. No legislative mandate should be necessary to keep this court from giving the statute a narrow construction which will interfere with the powers of the court to carry out the legislative will. In the final analysis, however, the powers of the Municipal Court rest upon legislative will and not upon the will of the courts and the courts cannot in the guise of a liberal construction confer upon the Municipal Court a power not given by the statute. The sole question which we have a right to consider is, did the legislature in enacting this statute mean to give the Municipal Court all the powers which by the Code of Civil Procedure it had conferred upon courts of record except as those powers are specifically limited by the Municipal Court Code. I do not think that we are required or even authorized to give the Municipal Court Code such a construction.

The report of the commission which drafted the Municipal Court Code states:

I. Making the Municipal Court a court of record, increasing its jurisdiction to one thousand dollars and providing for a chief justice and chief clerk.
In the opinion of the Commission the reasons for these changes are convincing. By making the court a court of record many salutary provisions of law generally applicable to courts of record become applicable to the Municipal Court without the necessity of repeating them in the act. On the other hand, no real increase of the poivers of the court is made by that change, for the court has long possessed all of the general poivers of a court of record enumerated in the statute (Code Civ. Pro., sec. 7), viz: To issue a subpoena * * * To administer an oath to a witness, * * * Devise and make new process and forms of proceedings, necessary to carry the powers into effect. * * * Indeed, the terms court of record and 1 courts not of record ’ as used in our law have become little more than a convenient means of classification. Italics are mine.

Obviously the opinion of the commissioners Who drafted the Municipal Court Code that the change in the law made no real increase of the powers of the court is not binding upon this court, but it is at least helpful to us in determining whether a construction which will give the Municipal Court a real increase of power is liberal construction in furtherance of justice.

Section 7 of the Code of Civil Procedure enumerates the general powers of courts of record. Even if the Municipal Court had not previously possessed these powers this section became applicable to it as soon as it was made a court of record. The legislature must have known the definition which it has given to the organization and general powers of a court of record and in making the Municipal Court a court of record it necessarily made the enumeration of the powers of a court of record applicable to the Municipal Court.

It seems to me, however, extremely doubtful whether the legislature intended that those provisions of the Code of Civil Procedure which do not define or enumerate the general powers and organization of courts of record or regulate the exercise of these general powers, hut which create new rights and powers in matters of practice or procedure, should become applicable to the Municipal Court merely because the Code of Civil Procedure has also provided that these sections of the Code are applicable to courts of record. This distinction seems to me to rest on a firm basis. When the legislature made the Municipal Court a court of record that court ipso facto became entitled to exercise all those powers which are inherent in courts of record in the exercise of their statutory jurisdiction. When the legislature passed general enactments, whether in the Code of Civil Procedure or elsewhere, defining in general the powers of all courts of record, such general powers also became vested in the Municipal Court when it became a court of record without any specific provision of law making these statutes applicable to the Municipal Court, and merely by reason of the fact that it did become a court of record. As a court of record created by the legislature, it must necessarily fall within the legislative definition of a court of record. Where, however, the legislature has in the Code of Civil Procedure made provision for new rights, remedies and powers, these specific rights, remedies and powers do not become applicable to the Municipal Court, which has been given a code of its own, unless the provisions of the Code of Civil Procedure were also made applicable to the Municipal Court. The mere fact that the provisions of the Code of Civil Procedure creating these rights, remedies and powers are by the Code made applicable to proceedings in courts of record is not conclusive, except in so far as the legislature intended that the general provisions of the Code of Civil Procedure should be applicable to the Municipal Court in addition to the provisions of the Municipal Court Code. It is somewhat significant that nowhere in the Municipal Court Code did the legislature enact that the “ provisions ” of the Code of Civil Procedure shall apply to the Municipal Court as far as the same can be made applicable and are not in conflict with the provisions of the act. The Municipal Court Act, as it existed prior to September 1, 1915, contains such a section (§ 20), but in the present Code the legislature has substituted for that section section 15 quoted above. In the sections of the Code of Civil Procedure relating to the City Court the legislature has. specifically provided that Each of the foregoing provisions of this act * * * applicable to the city court of the city of New York or generally to courts of record is subject to the qualifications and exceptions expressed or plainly implied in this title.” Code Civ. Pro., § 3159.

If we now hold in spite of this omission the legislature intended to make all the provisions of the Code of Civil Procedure which are applicable generally to courts of record also applicable to the Municipal Court, we must arrive at the strange result that the legislature intended to give by implication to the Municipal Court powers which it expressly withdrew from the City Court, including the power to appoint referees under section 827 of the Code, and yet that the legislature has provided no method of appeal or review of any intermediate orders made under the powers impliedly given, except as such orders may be reviewed upon appeal from a final judgment. It seems to me that the only reasonable construction of the Municipal Court Code is that the legislature intended to give to the Municipal Court no powers not expressly or by fair implication given by such Code, and that only those sections of the Code of Civil Procedure are applicable to the Municipal Court which fall within the language of section 15 of the Municipal Court Code, i. e., those sections of the Code of Civil Procedure which cover matters of practice, pleadings, forms and procedure in the exercise of the powers otherwise expressly or impliedly granted to the Municipal Court. The only question that remains is whether an order of examination is such a matter of practice or procedure. The right to examine an adverse party is purely a statutory right. The courts have no inherent power to grant such an order. In fact even the Supreme Court has absolutely no right to grant such an order for the statute has conferred that power upon a judge of the court and not upon the court. Heishon v. Knickerbocker L. I. Co., 77 N. Y. 278. The right to an order of examination cannot I think strictly be considered as a matter of practice or procedure in an action , it is a right given to a party in the action by statute, and, though the order is obtained in the action and not in a special proceeding, yet that order can be made only by virtue of the power conferred by statute, and is not merely a matter of practice or procedure of the court in the -action. In other words section 873 of the Code of Civil Procedure does not regulate or alter or determine the practice or procedure of the court but confers a new power upon a judge of the court. It seems to me that when we read the entire Municipal Court Code, especially in view of the alteration in the language between the old act and the new Code, and in view of the fact that the legislature has made specific provision in the Municipal Court Code for the physical examination of an adverse party, for the taking of depositions cle bene esse, and for other matters which are covered and well covered by provisions applicable to all courts of records, a reasonable construction of the act requires us to hold that the legislature intended to make the Municipal Court a court of record only in the exercise of its statutory powers, that it did not impliedly give to the Municipal Court all the powers conferred by the Code upon courts of record, but merely intended that in the exercise of the powers specifically granted to it the same practice, pleadings, forms and procedure shall be used as in the Supreme Court. Such a construction will carry out the legislative intent that the practice and procedure in all courts shall be the same within the limits of the powers conferred on each court; it will give to the' Municipal Court all the subsidiary powérs which at common law were inherent in a court of record so far as. they are applicable in the exercise of the statutory powers given it by the legislature, and all the powers which come within the legislative definition of the powers of a court of record; it will do away with many of the technicalities which grew up under the Municipal Court Act, but it will not by implication confer upon that court statutory powers of a new kind which the legislature has not specifically given to the court. In other words, I consider that a liberal construction of the act in furtherance of justice requires us to hold that the legislature has made the practice, pleadings, forms and procedure of the Municipal Court conform to that of the Supreme Court, and has conferred upon the Municipal Court all the powers which must reasonably be implied by that enactment, but it has conformed the practice, pleadings, forms and procedure to that of the Supreme Court only within the limits of the powers specifically granted to it, and has not by implication granted it any powers, granted to courts of record, by general statute which are not reasonably necessary in the exercise of its statutory powers. I have not arrived at this result without considerable doubt. I am aware that the Appellate Term, second department, has held otherwise upon this question in the case of Scheidlinger v. Silber, post 322, and I would be constrained to follow that decision for the sake of unanimity in the courts but for the fact that if we do so the appeal in the present case must be dismissed, and I have some doubt whether there could be a review by the Appellate Division of an order dismissing an appeal.

It follows that the order should be reversed and the motion to vacate granted, with leave to the plaintiff to appeal to the Appellate Division.

Pendleton and Whitaker, JJ., concur.

Order reversed and motion granted, with leave to appeal to Appellate Division.  