
    Carmine Sommese, Respondent, v. The Florence Distilling Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Municipal Courts — Jurisdiction — Municipal Court of the city of New York.
    The jurisdiction of the • Municipal Court of the city of New York does not- extend to an action brought by a nonresident plaintiff against a foreign corporation having a place for the regular transaction of business in the city of New York upon a cause of action which arose out of the State.
    Appeal by the defendant from a judgment in favor of the -plaintiff, rendered in the Municipal Court of the city of TSTew York, second district, borough of Manhattan.
    Francis Colety, for appellant.
    Bloch & Hoffman, for respondent.
   Gildersleeve, J.

The plaintiff obtained judgment; and the - defendant bases its appeal on the ground that the court below had no jurisdiction over the case, for the reason that the plaintiff is a nonresident, defendant is a foreign corporation, and the cause of action arose out of the State. Section 1780 of the Code provides, among other things, that: “An action against a foreign corporation may he maintained by * * * a nonresident in one of the following cases only: 1. Where the action is brought to recover damages for the breach of a contract made within the State, or relating to property situated within the State, at the time of the making thereof; 2. Where it is brought to recover real property situated within the State, or a chattel which is replevied within the State; 3. Where the cause of action arose within the State, except where the object of the action is to affect the title to real property situated without the State.” The case at bar comes within none of the subdivisions above quoted of section 1780' of the Code. At the end of the case, however, it was conceded on the record that defendant has “ a place for the regular transaction of its business at 11 Broadway in the borough of Manhattan, city of Hew York.” Section 20 of the Municipal Court Act provides, in substance, that, while the provisions of the Code are in general applicable to the Municipal. Court, they are not to be deemed applicable when in conflict with the provisions of the Municipal Court Act. Section 25, subdivision 3, of the Municipal Court Act provides, among other things, that “ no person who shall have a place in said city for the regular transaction of business shall be deemed a nonresident under the provisions of this act.” A corporation is included in the term “ person,” as used in the statutes. See Schermann & Sons v. DePalo, 66 App. Div. 29, 30; Goldzier v. Central R. R. of New Jersey, 43 Misc. Rep. 667. Section 1, subdivision 18, of the said act provides that the jurisdiction of the Municipal Court “ extends to actions against * * * a foreign corporation having an office in the city of Hew York.” It was stated by. this court in the case of Goldzier v. Central R. R. of New Jersey, 43 Misc. Rep. 667, that “A foreign corporation, being a nonresident in fact, becomes for the purpose of conferring jurisdiction, by fiction of the law, a resident of the city, if it has a place therein for the regular transaction of business.” That case involved the question of the proper place of trial in an action brought by a nonresident plaintiff against a foreign corporation having a place of business within the city, and it was held that, in such an action, the trial was properly removed, upon the application of the defendant, to the 'district where it had its place of business. Title 2 of the Municipal Court Act begins with section 25, and that section is entitled: “ In what district brought.” It contains five subdivisions, specifying the several districts in which actions in that court must be brought. Subdivision three, after providing that “ * * * where all the parties reside out of said city the action may be brought in any district,” continues thus:'“ Fó person who shall have a place in said" city for the regular transaction of business shall be deemed a nonresident under the provisions of this act.” It is clear that the Legislature intended to provide, simply, that where a nonresident shall have a place of business in this city, such place of business shall be deemed his residence, for the purpose of determining in what district the action shall be tried; and it was not the intent" of the Legislature to confer jurisdiction upon the Municipal Court over a nonresident defendant in an action in which, except for such provision as to residence, the court would have no jurisdiction. Further than this we should not go. The effect of upholding the jurisdiction of the Municipal Court, under the circumstances presented in the case at bar, would be to hold that that court has a greater jurisdiction than the Supreme Court. Such a result, certainly, could not have been intended. The meaning of the Legislature must b'e construed to have been that, where the Municipal Court has jurisdiction of the cause of action, such jurisdiction would extend to a foreign corpora-tion having a place for the transaction of business within this city. Progressive Power Co. v. Wrought Iron Bridge Co., 14 Misc. Rep. 23. In the case at bar it had no jurisdiction over the cause of action, which arose out of the State, and its jurisdiction did not extend to the defendant.

Guy and Bruce, JJ., concur.

- Judgment reversed, with costs, and complaint dismissed.  