
    George Tyroler, Respondent, v. Charles J. Gummersbach, Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Municipal Court of the city of Hew York — In actions for the recovery of money only, the record must show that the defendant resided within its jurisdiction — Objection available for the first time on appeal.
    The Municipal Court of the City of New York is a new inferior local court of civil jurisdiction which was created by the Greater New York charter and, as such, is subject to the same constitutional provisions (art. VI, § 14) as is a County Court, limiting jurisdiction in actions for the recovery of money only to cases where the defendants reside in the county. No provisions of the charter which conflict with this particular constitutional limitation are valid.
    Where the record in such an action brought in said Municipal Court fails to show the jurisdictional fact that the defendant resided within the territorial jurisdiction of said court, it has no power to render a judgment against him and he may take the objection in the first instance upon an appeal.
    Appeal by the defendant from a judgment rendered in the Municipal Court, borough of Manhattan, ninth district, in favor of the plaintiff, and against the defendant.
    Julius Lehmann, for respondent.
    Martin O’Brian, for appellant.
   Freedman, P. J.

The action was brought by the plaintiff to recover from the defendant a certain sum claimed to be due to plaintiff as commissions for the sale of railroad tickets for the defendant who was an eastern passenger agent of the Delaware, Lackawanna & Western Eailroad. The action was brought in the Municipal Court of the city of Eew York, borough of Manhattan, ninth district. Upon the trial the plaintiff had judgment and the defendant appealed to this court. Upon this appeal the defendant asks for a reversal of the judgment on the ground that it nowhere appears in the record that he is a resident within the territorial jurisdiction of the said Municipal Court; that such residence is a jurisdictional fact, and that the absence of such fact from the record is fatal to the judgment. Eo such question as to the jurisdiction of the court having been raised below, it remains to be seen whether the question can be raised for the first time on appeal.

The Municipal Court of the city of New York has been created by the legislature by chapter 378 of the Laws of 1897. It is an inferior local court of civil jurisdiction within the meaning of section 18, article VI, of the Constitution.

The general rule applicable to every inferior local court is that the record of its judgment must affirmatively show the existence of every jurisdictional fact, and that, unless the contrary appears by the record, the presumption is that the court was without jurisdiction.

The authorities upon this point are too numerous to be referred to in detail. The two leading cases bearing directly upon the question now under consideration are Frees v. Ford and Gilbert v. York.

In Frees v. Ford, 6 N. Y. 176, and another case against the same defendant, the action in each case was brought in a County Court in assumpsit and the declaration contained no allegation as to the residence of the defendant. The objection was taken by demurrer. The Court of Appeals held: “ This county court is not a court of general jurisriction, as was the old court of common pleas; on the contrary, it is a new court with a limited statutory jurisdiction. To all such courts the rule universally applies, that their jurisdiction must appear upon the record. Turner, Admr. v. The Bank of North America, 4 Dallas, 8. In these cases it does not appear upon the records that the defendants were, at the time when the suits were commenced, residents of the county of Columbia. This being a jurisdictional fact, and not averred upon the records, the judgment must be reversed.”

In Gilbert v. York, 111 N. Y. 544, the action was brought in a County Court upon a money demand. The complaint did not allege that the defendants were residents of the county, and the defendant demurred. They had judgment upon the demurrer in the County Court and the judgment was affirmed by the General Term of the Supreme Court. In affirming, that judgment in December, 1888, the Court of Appeals said: “ When we recur to the principle upon which the validity of judgments of courts of limited or inferior jurisdiction is determined, we think it may fairly be held that the sections of the Code referred to (§§ 481, 488 and 498) do not affect the rule declared in Frees v. Ford. In Peacock v. Bell, 1 Saund. 73, it is said, nothing shall be intended to be within the jurisdiction of a Superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged. This statement of the rule has been frequently approved. The rule has been applied in many cases in the Supreme Court of the United States to test the validity of judgments rendered in the Circuit Courts of the United States. * * * It has been uniformly held that the record of a judgment of a Circuit Court must affirmatively show the existence of the jurisdictional fact, and that, unless the contrary appears by the record, the presumption is that the case was without its jurisdiction, and it is further held that the question may be raised for the first time on error, and if on examination it is found that the record is silent as to the jurisdictional fact, the judgment will.be reversed. Stanley v. Pres’t, etc., 4 Dallas, 8; Robertson v. Cease, 97 U. S. 646; Grace v. Ins. Co., 109 id. 283; Continental Ins. Co. v. Rhodes, 119 id. 237. It was upon this principle that the case of Erees v. Ford was decided. We are not aware of any case in this state which controverts the general rule, that in a direct proceeding to review a judgment of a court of limited and inferior jurisdiction the record must show affirmatively that the court had jurisdiction, or else the judgment will be set aside. Frees v. Ford is an authority that the presumption that the inferior court is without jurisdiction when the jurisdictional facts are not alleged in the complaint, prevails on demurrer. * * * The argument, derived from the rules of pleading established by the Code, does not satisfy us that the legislature intended to abrogate the presumption to which we have adverted, nor do we think that the fact that the judisdiction of County Courts, of common-law actions like the present one, is now prescribed in the Constitution itself, and is not dependent upon the statute, takes the case out of its operation. They are still courts of limited jurisdiction within the case of Frees v. Ford.”

These authorities amply ustain the contention of the defendan and appellant, provided the jurisdiction of the Municipal Court, ninth district, in the case at bar depended uppn the fact of the defendant’s residence within the territorial jurisdiction of the court.

At the time of the passage of chapter 378 of the Laws of 1897, known as the Greater Mew York charter, there were District Courts in the old city of Mew York, and also Justices’ Courts in Brooklyn and Long Island City, and in Richmond and Queens counties. By section 1350 of the said charter the Justices’ Courts and the office of justice of the peace in the cities of Brooklyn and Long Island City were abolished. By section 1351 the District Courts of the city of Mew York and the Justices’ Courts of the first, second and third districts of the city of Brooklyn were continued, consolidated and reorganized under the name of “ The Municipal Court of the City of Mew York,” and it was thereby provided that “ said court shall be a local civil court within The City of Mew York as constituted by this act, and shall not be a court of record or have any equity jurisdiction; but shall have the jurisdiction, powers, duties and organization hereinafter prescribed.”

By section 1352 provision was made for the continuance in office of certain justices as justices of said Municipal Court, for the election of their successors, and for the appointment by the mayor of seven additional justices of said Municipal Court in certain districts of the borough of Brooklyn, the borough of Queens and the borough of Eichmond.

The District Courts of the city'of Yew York had existed under various names for many years prior to the Constitution of 1894. They are mentioned in the Constitution of 1846, as amended in 1869. They formed a part of the judicial system of the state, and a District Court justice was not an officer or employee of the city government under the former Yew York city charter contained in chapter 95 of the Laws of 1873. The jurisdiction of the Distrid Courts was a peculiar one. It was purely a statutory one, and though the statute prescribed with particularity the district in which an action was to be brought, the jurisdiction of the said court was not limited to cases wherein the defendant was a resident within the territorial jurisdiction of the court at the time of the commencement of the action.

In Dammann v. Peterson, 17 Misc. Rep. 369, it was held by this court that the plaintiff in an action in a District Court was not required to allege or prove the residence of either or all of the parties within the judicial district, and that the rule laid down in Frees v. Ford, 6 N. Y. 176, and Gilbert v. York, 111 N. Y. 544, to the effect that all the facts necessary to confer jurisdiction must affirmatively appear in the record and that this included the fact of the defendant’s residence, applied only to County Courts and did not apply to the District Courts, because the jurisdiction of the latter was made to depend solely upon the character of the cause of action and not upon the residence of the parties.

If, therefore, it could be held that the Municipal Court of the city of Yew York is but a continuation of the District Courts of the the city of Yew York with substantially the same jurisdiction theretofore possessed by said courts, the claim of the appellant would be untenable. But the Appellate Division in the Second Department has already held in the Matter of Schultes, 33 App. Div. 524, that the provisions of the charter of Greater Yew York relating to the continuance, consolidation and reorganization under the name of The Municipal Court of the City of Yew York,” of the District Courts of the city of Yew York and the Justices’ Courts of the first, second and third districts of the city of Brooklyn, contemplated not a mere continuance of the old courts, but the erection of a distinctly new and inferior local court not of record, having other and greater powers and jurisdiction, etc., etc.

That decision cannot be disregarded by this court and we feel constrained to follow it. That being so, the next question is whether in the erection of this distinctly new and inferior local court in the year 1897, due regard was had for the provisions of the Constitution of 1894, limiting the powers of the legislature in such a case.

The Constitution of 1846, as amended and in force prior to January 1, 1895, simply provided (Art. VI, § 19) “ Inferior local courts 'of civil and criminal jurisdiction may be established by the legislature.”

It contained no limitation upon the power of the legislature to prescribe the jurisdiction of a lower court established by it.

When the Constitution of 1894 was adopted, this provision of the former Constitution was amplified and amended so that it now reads (Art. VI, § 18) : Inferior local courts of civil and criminal jurisdiction may be established by the Legislature, but no inferior local court hereafter created shall be a court of record. The Legislature shall not hereafter confer upon any inferior or local conrt of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article.”

The present action is brought for the recovery of money only. The next inquiry then must be what constitutional limitations are placed by article VI upon the jurisdiction of County Courts in such actions, because whatever limitations are thus imposed must be observed by the legislature in the definition of the jurisdiction of any inferior or local court created after the 31st day of December, 1894.

Section 14 of article VI provides: * * * “ County Courts shall have the powers and jurisdiction they now possess, and also original jurisdiction in actions for the recovery of money only, where the defendants reside in the county, and in which the complaint demands judgment for a sum not exceeding two thousand dollars. The Legislature may hereafter enlarge or restrict the jurisdiction of the County Courts, provided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant.”

Thus it will he seen that while section 14 of article VI of the Constitution invests the County Courts with original jurisdiction in actions for the recovery of money only, the said jurisdiction has been restricted to actions where the defendants reside in the county and in which plaintiff’s demand does not exceed $2,000, and furthermore that while power was conferred upon the legislature to enlarge the jurisdiction of the County Courts, such grant of power was also restricted by the proviso that the jurisdiction of said courts shall not be so extended as to authorize an action therein for the recovery of money only in which the sum demanded exceeds $2,000, or in which any person not a resident of the county is a defendant.

Moreover, prior to the adoption of the Constitution referred to, the jurisdiction of the County Courts under the provisions of the Code of Civil Procedure, in actions for the recovery of money only, was similarly restricted, and consequently the constitutional provision continuing the County Courts with the powers and jurisdiction they then possessed conferred no greater or additional powers in actions for the recovery of money only than has already been pointed out.

In such an action no County Court had jurisdiction over or against a nonresident. From the foregoing considerations it clearly follows that just as much as the legislature is restricted in conferring jurisdiction upon the County Courts over or against nonresidents in actions for the recovery of money only, it stands restricted in conferring such jurisdiction upon any inferior local court created by it since the adoption of the constitutional provision hereinbefore quoted. And as an unavoidable corollary it further follows that although in Irwin v. Metropolitan St. R. Co., 38 App. Div. 253, in which case the defendant was a domestic corporation and a resident of the county of Mew York, it has been held by the Appellate Division in this department that the act creating the Municipal Court of the city of Mew York was not unconstitutional as a whole, because a constitutional restriction above referred to related to subject-matter and persons, and not to locality, it must now be held that in so far as any provision of the act creating the Municipal Court attempts to confer jurisdiction upon any District Court of said Municipal Court in an action for money only over or against a nonresident of the county in which such District Court is located, it is unconstitutional and void. Epon the same line of reasoning this court has held in Rieser v. Parker & Co., 27 Misc. Rep. 205, that in so far as the act creating the Municipal Court attempted to confer jurisdiction upon said court over actions against foreign corporations, it is unconstitutional and void.

The residence of the defendant in every case for the recovery of money only brought in the Municipal Court is, therefore, a jurisdictional fact, and under the doctrine of Frees v. Ford and Gilbert v. York, supra, the existence of such fact must affirmatively appear whenever the jurisdiction of the court is assailed in that particular.

True, under section 2940 of the Code the pleadings may be oral or written, and if a complaint is oral, the jurisdictional fact relating to defendant’s residence may not appear in the same way or manner in which it is to be set forth in a written complaint in a court of record. But in such a case such jurisdictional fact must at least be established by proof. In the case at bar there is neither averment nor proof as to the residence of the defendant, and consequently under the doctrine of Frees v. Ford and Gilbert v. York, supra, the want of jurisdiction of the District Court to render the judgment, appealed from is to be presumed, and the objection to such jurisdiction may be raised on appeal for the first time.

Even as regards courts of original and general jurisdiction it has been held in Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315, that where the action is of such a character that owing to plaintiff’s nonresidence the court has no jurisdiction of the subject-matter of the action, the objection to the jurisdiction of the court may be taken at any stage of the action, and that in such a case the court may, ex mero motu, at any time, where its attention is called to the fact, refuse to proceed farther and dismiss the action. For a further and full discussion of the question and others more or less connected therewith, reference may be had to the case of O’Reilly v. New Brunswick, Amboy & New York Steamboat Co., decided by this court during the present term of court (28 Misc. Rep. 112).

The judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Leventritt, J., concurs.

MacLean, J.

(Concurring.) The important point in this case •is the objection, taken for the first time on this appeal, that the record is silent as to the residence of the defendant, who contends that such jurisdictional fact must appear and that its absence is fatal to the judgment.

The action was brought for the recovery of money only in a court not of general, but of limited statutory jurisdiction, and “to all such courts the rule universally applies, that their jurisdiction must appear upon the record ” (Frees v. Ford, 6 N. Y. 176, 178), and will not be presumed as in the case of courts of general jurisdiction. The Circuit Courts of the United States, although not inferior courts, are courts of limited jurisdiction. It has been uniformly held that the record of a judgment of a Circuit Court must affirmatively show the existence of the jurisdictional fact, and that, unless the contrary appears by the record, the presumption is that the case was without its jurisdiction, and it is further held that the question may be raised for the first time on error, and if on examination it is found that the record is silent as to the jurisdictional fact, the judgment will be reversed. Stanley v. Prest., etc., 4 Dallas, 8; Robertson v. Cease, 97 U. S. 646; Grace v. Ins. Co., 109 id. 283; Continental Ins. Co. v. Rhodes, 119 id. 237. It was upon this principle that the case of Frees v. Ford was decided. We are not aware of any case in this state which controverts the general rule, that in a direct proceeding to review a judgment of a court of limited and inferior jurisdiction the record must show affirmatively that the court had jurisdiction, or else the judgment will be set aside.” Gilbert v. York, 111 N. Y. 544, 548, 549.

The court in which this action was brought has been held to be a new inferior local court, not of record, created by the legislature under article VI, section 18, of the Constitution. “ The Legislature, by virtue of article 6, sections 17 and 18, of the Constitution, had power to create such a new court, provided it was made a local inferior court not of record. This we hold to be the character of the Municipal Court.” Matter of Schultes, 33 App. Div. 524, 532.

The Constitution, under article VI, section 18, provides that “ Inferior local courts of civil and criminal jurisdiction may be established by the Legislature, but no inferior local court hereafter created shall be a court of record. The Legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article.” That is, the legislature may create inferior local courts not of record, but is expressly prohibited from conferring upon such courts any greater jurisdiction than is conferred upon County Courts ” by the Constitution itself. And section 14 of the same article provides that County Courts shall have “ original jurisdic tion in actions for the recovery of money only, where the defendants reside in the county ” and this the Legislature may not extend. In other words,” say the Appellate Division of this department in Irwin v. Metropolitan Street R. Co., 38 App. Div. 253, the framers of the Constitution did not intend to permit local courts to grow up into courts of general jurisdiction even within the locality wherein they were situated. The Legislature was prohibited from 'establishing a local court of record, nor could it confer upon any local court of its creation any equity jurisdiction, and then in order that it might not give such courts general jurisdiction in actions at law, the Constitution restricted the jurisdiction which might be conferred in other respects to that which was conferred upon County Courts by the instrument.”

In Irwin v. Metropolitan Street R. Co., supra, the question involved was as to the constitutionality of the act creating the Municipal Court of the City of Mew York and extending its jurisdiction over more than one county, and the Appellate Division decided that the act was not in such respect unconstitutional, saying, It cannot be that after using language which was well understood and had been distinctly interpreted to give the Legislature the right to establish inferior local courts as part of a new system of government, it was intended to restrict that power by reference to the territorial jurisdiction conferred upon County Courts, hut rather to restrict their jurisdiction as to subject-matter and persons, and not as to locality. * * *

“ There might, perhaps, be some force in the argument that the framers of the Constitution had in mind the territorial jurisdiction of the County Courts, if county lines were immutable and were not the subject of change at the will of the Legislature. County lines have no more dignity than, and are as subject to the action of the Legislature as, any of the other territorial divisions of the State, such as towns, villages and cities.” And at the close of its opinion the court'says: “ It may be that in the act creating the Municipal Court jurisdiction may have been attempted to be conferred which contravenes the Constitution, but there is no infirmity in the scheme creating the court which renders the whole of the provision in respect thereto void and of no effect.”

In that case the court admits the intention of the framers of the Constitution to restrict the legislature in the exercise of the power of conferring jurisdiction “ as to subject-matter and persons,” and in the present case the question not merely of the jurisdiction of the person, but of the cause of action itself, is distinctly involved. Whatever, and however extensive, be the scope of the jurisdiction conferred by section 1370 of the Greater Hew York charter upon the Municipal Court of the City of Hew York, a new local inferior court, and whatever extension or restriction of jurisdiction of County Courts may be attempted by the Legislature within and in accordance with constitutional permission (Art. VI, § 14), in at least one respect, viz., in actions in County Courts for the recovery of money only, there is an express restriction placed by the Constitution upon legislative action, which, under section 18 of article VI, applies as expressly and unmistakably to new local inferior courts, and that is, that in such actions the defendant must be a resident of the county, and jurisdiction therein is placed beyond reach of extension by the legislature. The residence of the defendant being a jurisdictional fact, and incapable of being consented to or waived, it matters not when the objection is raised, neither appearance nor answer to the merits concluding the defendant, the jurisdictional fact being a prescribed limitation upon the power of the court. As was said by the Court of Appeals in Burckle v. Eckhart, 3 N. Y. 133, 137, “ When jurisdiction of the subject and person is required as a pre-requisite to judicial action, a defendant may waive any irregularities in the mode by which his person is sought to be subjected to the jurisdiction of the court. * * * This is all that is meant by consent giving jurisdiction of the person.” And in Davidsburgh v. Knickerbocker Life Ins. Co., 90 H. Y. 526, 530, the same court said: There are, no doubt, many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision, but where the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such a case the particular condition or status of the defendant is made a jurisdictional fact.”

This being an action for the recovery of money only, brought in the Municipal Court of the City of Hew York, and the residence of the defendant being a prerequisite condition and so a jurisdictional fact, neither appearing nor averred upon the records, the judgment must be reversed. Frees v. Ford, 6 N. Y. 176, 178.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  