
    Louis Jacobs, Appellant, v. Isaac Lieberman, Respondent, Interpleaded as Defendant in Place and Stead of John F. Harriot, etc.
    
      Interpleader in the Municipal Court of the city of Mew Torlc —jurisdiction gireji by consent.
    
    It is extremely doubtful whether the Municipal Court of "the city of New York has power to compel an interpleader under section 820 of the Code of Civil Procedure, but a person who consents to be interpleaded in an action pending in that court, answers therein and submits himself to its jurisdiction, cannot complain that the court did not have jurisdiction to render judgment against him in a proper case.
    Appeal by the plaintiff, Louis Jacobs, from a judgment of the-Appellate Term of the Supreme Court in favor of the defendant, Isaac Lieberman, entered in the office of the clerk of the county of New York on the 3d day of November,. 1899, and also from an order of the Appellate Term, entered in said clerk’s office on the 1st day of November, 1899, reversing a judgment in favor of. the plaintiff rendered by the Municipal Court of "the city of New Yotk, borough of Manhattan, first district, upon which order the judgment was based.
    
      David Steckler and Terence Farley, for the appellant.
    
      Abraham H. Sarasohn, for the respondent.
   Rumsey, J.:

The. action was originally brought against John F. Harriot, as property clerk in the police.department in the city of New York, to recover money which was in his possession and which was alleged to be the proceeds of property stolen by one Frank and found in bis possession when he was arrested for larceny. Harriot moved in the Municipal Court for leave to pay into court the.fund sought to be recovered, and to substitute Lieberman, the present defendant, as a party defendant, because of his claim to be the owner of the. money. When this motion came on to be heard it was granted, and the order granting it , recited that it was opposed by the plaintiff and that Abraham H. Sarasohn, Esq., attorney for the adverse claimant, Jacob Lieberman, consented thereto. After Lieberman had thus been brought in by his own consent, he answered, denying certain material allegations of the complaint. When the case came on for trial the plaintiff moved for judgment upon the pleadings, and the court held that the action involved a principle of law and not a question of fact, and that the court had no jurisdiction to pass upon the questions presented by the defendant, and, therefore, he directed the jury to find a verdict'against the defendant for $170, which was done against the exception of the defendant, and upon that direction the judgment was afterwards entered against the defendant and in .favor of the plaintiff for $190.59, judgment and costs. Upon appeal to the Appellate Term this judgment was reversed, but leave was granted to appeal to this court.

It is established that the Municipal Court is not an off-shoot, or continuation of the old District Court of the city of Hew York, but is a new court created by the charter of the Greater Hew York (Laws of 1897, chap. 378), with no other or different powers than are given to it in that statute, or which might be given to it by the Legislature under the authority of the Constitution. (Matter of Schultes, 33 App. Div. 524; Worthington v. London Guarantee Co., 47 id. 609.) It is a court of limited and special jurisdiction and can exercise no power except such as the statute has given to it. The right to compel an interpleader upon motion is given by section 820 of the Code of Civil Procedure; and except so far as that right is given to common-law courts by express provision of the statute it is not given at all. Section 820, however, applies only to the Supreme Court, the City Court of New York, and the County Courts (Code Civ. Proc. § 3347, subds. 4, 6), and it affects the power of no other court than those. Were it necessary to determine whether under the present statute the Municipal Court had power t¿ require parties to inter-.plead as the District Court formerly had, we should have great difficulty in reaching an affirmative, conclusion. But that question is not here for decision.

Lieberman made no objection when it was sought to bring him in as a. party defendant, and the recital in the order, which must betaken to be true, is that it was made with his consent. It is true that the plaintiff objected to the order; when-it had been granted, however, he took no steps to review it, but apparently-acceded to it and proceeded to enter judgment against Lieberman as defendant in the place of Harriot. He, therefore, has put it out of his power to raise any question as to the propriety of that order.

The-court had jurisdiction of the subject-matter of the action and when Lieberman, who was a resident of the city of'New York, consented to be made defendant, he submitted himself to the jurisdiction of the court and he is not now at liberty to complain that the court had no jurisdiction to. render judgment against him in a proper case. The question then whether he was properly made a defendant is not before us for decision.

But the complaint alleged that the cause of action originally ■ belonged to one Frank, and had been assigned to the .plaintiff on the 17th of June, 1899. That allegation was especially denied by the answer which also denied other allegations -necessary to the plaintiff’s recovery. Upon that state of the pleadings it is clear that the plaintiff could not recover until he had proved the controverted facts which were essential to entitle him to a judgment. None of those were proved, and, therefore, it was error for the court to direct judgment upon the pleadings as was done by the .Municipal Court justice. ' It is quite true that there appears among the papers in the case what is said by counsel to be an assignment from Frank to the plaintiff, but that assignment was not'proved upon the trial and was not produced in evidence, and if it had been,- the defendant, having denied it, had a right to show that it was not executed or not delivered. This opportunity he was refused, the court saying that ■ it had no jurisdiction to pass upon the questions raised by the defendant, and, therefore, ordered a verdict for the plaintiff.- It.is rather a peculiar state of affairs that the court had jurisdiction to assume as true all the allegations of the complaint, although controverted in the answer, but no jurisdiction to. take the -defendant’s' proof to overthrow them. It is clear that Lieberman, having denied those allegations of the complaint, should not have had judgment entered against him until they had been proved and evidence had been given to establish the facts, and he should have been permitted to give such proof as he had to overthrow the plaintiff's case. For the .error in denying him that right the judgment was properly reversed, and to that extent the determination of the Appellate Term mu'st be affirmed, but as the Municipal Court had jurisdiction to hear the case, the matter should be sent back to it for a new trial, with costs to the appellant to abide the event.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.

Determination of the Appellate Term affirmed' to the extent stated in opinion, and case sent back to the Municipal Court for new trial, with costs to appellant to abide event.  