
    LANDERS against THE STATEN ISLAND RAILROAD COMPANY.
    
      Court of Appeals;
    
    
      October, 1873.
    
    -eversing 13 Abb. Pr. N. S., 338.
    Jurisdiction.—City Court of Brooklyn.—Superior City Courts.
    The city court oí Brooklyn has no jurisdiction of an action where the cause of action did not originate within the territorial limits of the city, and the defendant is a corporation not located nor having a place of business therein.
    It was created as a local court, and was continued as such by the judiciary article of 1869; and the provision of that article, allowing the legislature to confer further civil and criminal jurisdiction upon that court and the other local courts (viz., the New York common pleas and the New York and Buffalo superior courts), does not authorize the legislature to convert such local courts into State courts, with power to send their process into every part of the State.
    Hence the act of 1871, p. 555, c. 282, as well as the act of 1873, p. 363, c. 239, relative to the superior city courts, is unconstitutional, so far as it attempts to confer jurisdiction of cases where neither the cause of action arose, nor the subject is situated, within such cities respectively, and the defendant is not a resident nor served with process therein, nor a corporation having a place of business therein.
    
    This and two other actions were brought in the Brooklyn city court against the defendant to recover damages sustained through a boiler explosion, which occurred by defendant’s negligence, in the city of New York.
    The fourth defense in the answer was as follows:
    This defendant avers and states, that its principal office is in the city and county of New York, and that it has never had any office whatever in the city of Brooklyn, or county of Kings ; and that the accident referred to in the plaintiff’s complaint happened while said steam ferryboat Westfield was lying at and attached .to a wharf or slip in the city of New York. That this defendant does not reside in the city of Brooklyn, and has never had any place of business or property therein, and that the summons in this action was served upon it within the city and county of New York.
    And this defendant, further answering, avers and states, that the city court of Brooklyn, in which this action is brought, is an inferior local court of civil and criminal jurisdiction, within the meaning of article six, section fourteen, of the constitution of the State of New York, and that its organization and jurisdiction are not uniform with those of similar courts in other cities of the State of New York, except the cities of New York and Buffalo ; and that any and each and all of the acts of the legislature of the State of New York, by which such jurisdiction has been attempted to be conferred, were and are applicable only to said city court of Brooklyn, and not to the other inferior local courts of civil and criminal jurisdiction in cities, other than the cities of New York and Buffalo, thereby causing the jurisdiction and organization of said city court of Brooklyn to be different, dissimilar, and not uniform with those of other similar courts in the cities of this State, except the cities of Hew York and Buffalo ; wherefore, the said acts were and are against and in contravention of .said article six, section fourteen, of. the constitution of the State of Hew York, and therefore unconstitutional and void. Wherefore, this defendant insists that the said court has no jurisdiction of the person of this defendant, nor of this action, nor of the subject matter thereof; and this defendant demands judgment against the said plaintiff for a dismissal of said complaint, with costs.
    
      The city eou-rt held that they had jurisdiction, and plaintiff recovered. Reported in 13 Abb. Pr. A. 8., 338. Defendants appealed.
    
      
       See, as to those restrictions, Van Pelt v. U. S. Metallic Spring Co., 13 Abb. Pr. N. S., 325, note.
    
   By the Court.—Allen, J.

The question first to be passed upon, upon the records before us, is as to the jurisdiction of the city court of Brooklyn in these actions. It cannot be denied that it is one first in importance as affecting the public interests and the jurisprudence of the State, especially in view of the legislation in 1873, which, proceeding upon the theory that controlled the proceedings and judgment of the court below in these actions, assumes to confer upon four local courts jurisdiction throughout the State, at law and in equity, concurrent and co-extensive with that of the supreme court, of all civil actions and special proceedings, and sends their process into every county (L. of 1873, ch. 239).

Ho one believes that it was the intention of the framers of article 6 of the constitution, adopted by the people in 1869, or of the people in ratifying it, to create or suffer the creation of four or any other number of additional supreme courts, or other courts, with the like and equal powers of the supreme court, having jurisdiction over the whole State. Although by the act of 1873 the sittings of the four courts are permanently local, that is, at the places arid within the limits of the original boundaries of their jurisdiction, there is no impediment, if the act is valid, to the removal of this restriction, so that those courts may traverse the State and exercise their jurisdiction in every part of it. If that act and the powers and jurisdiction undertaken to be conferred by it can be maintained under the constitution, a citizen of Cattaraugus may summon his next-door neighbor to appear in the city court of Brooklyn or the New York common pleas and answer to an action upon a cause originating at home ; or the citizens of New York and Kings may be called to answer in Buffalo to a like alleged cause of action; for these courts have power to send a summons for the commencement of an action, as other process, into any county of the State for service (Act, supra, § 11). This could not have been intended by the constitution; and if that instrument can be so interpreted as to sustain the legislation based upon it, its framers will have no reason to congratulate themselves upon the precision and care with which they have sought to give expression to, and clothe with language, their intent. The same rule of interpretation would permit the like jurisdiction to be conferred upon every county court. The declaration of the constitution is, “They (the existing county courts) shall also have such other original jurisdiction as shall, from time to time, be conferred upon them by the legislature” (Const., art. 6, § 15). The same liberal, or rather latitudinarian, construction of section 18 of article 6 of the constitution, which declares that “justices of the peace and district court justices shall be elected in the different cities of this State, in such manner,' and with such powers, and for such terms respectively, as shall be prescribed by law,” would permit the legislature to clothe the magistrates named with general powers throughout the State, including ministerial and executive, as well as judicial power.

To proceed to the examination of the precise question presented by these appeals. The city court of Brooklyn was established, as were some of the other courts referred to, as “an inferior local court of civil and_ criminal jurisdiction,” under the authority of the constitution of 1848 (Const., art. 6, § 14). The struggle in the convention which framed the present substitute for article 6 of the constitution of 1846, was to constitutionalize—that is, to make permanent, and take from the legislature the power to abolish,—the four courts named in the amended article, to wit: The superior court of the city of Hew York, the court of common pleas of the city and county of Hew York, the superior court of Buffalo, and the city court of Brooklyn, three of these courts being well and ably represented in the convention. That was the chief design of the new section (§ 12); and-there was no suggestion in the debates, or elsewhere in the proceedings of the convention, that the local character of the courts was to be changed; and there can be no doubt that if such had been declared or understood to be the intent and effect of the provision, it never would have been adopted by the convention or sanctioned by the people.

Upon no just principle of interpretation can it be construed so as to sustain the enlarged territorial jurisdiction sought to be conferred upon these courts. The discovery is a recent one, that any such intent or effect can be spelled out. The constitution, as now in force, declares that the city court of Brooklyn and the other courts named “are continued with the powers and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law.” Whatever jurisdiction those courts possessed, whether territorially or otherwise, is by the constitution put beyond legislative,discretion,—that is, the jurisdiction, before statutory, is now exercised under the constitution. The jurisdiction of the city court of Brooklyn, at the time of the adoption of this provision, was strictly local. It had a limited jurisdiction as to subjects, and was restricted as to territory, and the limits within which it was exercised over persons. Its jurisdiction, as conferred by the legislature, was qualified in respect to the objects of which it had cognizance, the persons upon and over whom it had or could acquire jurisdiction, and the territory within which it was to be exercised; and it could be enlarged or curtailed in respect to either of these without affecting the limitations or qualifications as to the other two. The court was established in 1849, and its jurisdiction as confirmed by the judiciary article of the constitution in 1869, was declared by the act creating it (Laws of 1849, 'p. 171, ch. 125). It extended to the actions enumerated in section 103 of the Code of 1848 (§ 123 of the present Code) ; 1. When the cause of action shall have arisen, or the subject of the action shall be situated within the said city ; 2. To all other actions where all the defendants shall reside or be personally served with the summons within said city ; 3. To actions against corporations created under the laws of this State, and transacting their general business within said city, or established bylaw therein {Laws of 1849, above, § 2). Criminal jurisdiction was conferred by subsequent sections of the act. The jurisdiction, as confirmed by the amended article of the constitution, was strictly local, in all its aspects ; and in the absence of any evidence • in the terms of the instrument, of intent to change radically the character of the court or its jurisdiction, an intent to do so will not be inferred. Indeed, in view of the constitution of this court, and the election of its members by the local electors of Brooklyn, and the necessary immobility of the court, it would require explicit language,—either a declaration in express terms, or phraseology which would admit of no other interpretation, to justify a construction which would permit the jurisdiction of the court to be extended to persons, or matters, the subject of the action, in every part of the State, and to make it co-ordinate with the supreme court, which heretofore and as a matter of history, has been the only court of general original jurisdiction in the State.

Does the amended article of the constitution, upon any reasonable interpretation, authorize the legislature to change the character of the city court of Brooklyn, by divesting it of its locality, so as to give it jurisdiction over the entire State, and to issue its original and initiatory process to any county, summoning the residents of the furthest corner from their homes, to answer to actions brought in the court, either by residents or non-residents of Brooklyn ? The constitution continues that court with the powers' and jurisdiction it then had, “and such further civil and criminal jurisdiction as may be conferred by law.” If the latitudinarian construction which has been given to this clause is to prevail, there is no impediment or obstacle to prevent the legislature in its discretion from giving the court jurisdiction over offenses committed in any part of the State ; and a party charged with petit larceny in Franklin county may, if the legislature shall so direct, be indicted and tried in the city court of Brooklyn, or .an indictment found, in the oyer and terminer of Albany county may, with the like legislative sanction, be transferred for trial in that court.

The terms employed in giving authority for the en- • largement of the jurisdiction of the court, do not, ex m termini, give or necessarily imply an authority to give it jurisdiction either of the subjects or causes of action or persons, outside the - boundary lines of the city of Brooklyn, or in any respect to make it aught else than a local court, as it was originally organized and was continued by the adoption of the amended judiciary article. Heither would the words, used in their ordinary sense, and as used, and popularly as well as legally understood, have any reference to the local character of the court, or authorize the delocalization of it, by the legislature. The terms civil and criminal,” when used, whether in reference to jurisdiction, or j udicial proceedings generally, have respect to the nature or form of the remedy and the cause of action or occasion for instituting legal proceedings. Civil stands for the opposite of criminal, and hence we have courts known as courts of civil jurisdiction and of criminal jurisdiction, distinguished by the character of the prosecutions in each.

A civil action is brought to recover some civil right, or to obtain redress for some wrong not being a crime or misdemeanor, and is thus distinguished from a criminal action or prosecution. A criminal action is a prosecution, in a competent court of justice, in the name of the government, for the punishment of a crime, and a civil action is one prosecuted for the redress of an injury or the prevention of a wrong (Bouv. Inst., pl. 2642 ; 3 Bac. Abr., Action, A). A competent court for the prosecution of either class of actions is one having lawful jurisdiction; and civil jurisdiction simply means jurisdiction to hear and decide civil actions; and to enlarge the civil jurisdiction of a court already having jurisdiction of that class of actions, is merely to give jurisdiction over other actions for the recovery of a right, or the redress of a wrong; and has no respect whatever to the territorial limit of the jurisdiction, or jurisdiction over persons. When the constitution speaks of a further civil and criminal jurisdiction, it has respect to the object of the jurisdiction, and not to the territory or the persons of suitors (Bouv. Inst., pl. 2536-7, and see Code, §§ 4, 5, 6). Civil jurisdiction is that which exists when the subject matter is not of a criminal nature ; and criminal jurisdiction is that which exists for the punishment of crime (Bouv. Dic., Jurisdiction). Therefore “ further civil jurisdiction ” in the constitution only had respect to and meant jurisdiction over subject matters and causes of action in addition to those of which the court already had jurisdiction.. ISTo thought was had as to an extension of the territorial jurisdiction of the court, or permitting it to take cognizance of causes of action not originating or situated in the city of Brooklyn, or hauling "men and women from distant parts of the State, who had never been within the limits of the city, within its power, and subjecting'them to its jurisdiction.

By the amended judiciary article of the constitution, the court is continued with the' same territorial and personal jurisdiction it had, and the same powers and jurisdiction as to territorial limits and over persons,' with power to the legislature to enlarge its jurisdiction over subjects and matters civil and criminal in their nature, and the proper subjects of civil or criminal prosecution.

The court was created as a city court. It was continued and perpetuated by the constitutional provision as.a city court, and cannot, under pretense of enlarging its civil and criminal jurisdiction, under the authority given for that purpose, be converted into a State court with plenary jurisdiction in every part of the State. When its jurisdiction and powers are thus enlarged, it ceases to be a city court. The authority was to enlarge its jurisdiction as a local court,—the city court of Brooklyn,—not to create a new court with general jurisdiction throughout the State.

These views are confirmed by reference to former legislation and judicial action in respect to local courts. The jurisdiction conferred upon courts local in their character had, up to the adoption: of the amended judiciary article of the constitution, always been consistent with the character of the court, and very far from indicating a disregard of the palpable distinction between a jurisdiction limited as to locality, and one general throughout the State, that is a local and a general jurisdiction; and if we assume that the framers of the present judiciary article had in view, in authorizing “further civil and criminal jurisdiction” to be conferred upon the city court of Brooklyn and the other courts named, a jurisdiction coextensive with that then exercised by any one of the courts under the statutes of the State as interpreted by the courts, it will be found to give no color to the claim for authority in the constitution, interpreted in the light and with the aid of such assumption, to confer a jurisdiction based solely upon the fact that the prosecutor chances to be domiciled in, or casually to be within, the city or county, irrespective of the residence of or presence of the defendants within the city, or the nature or the locality of the subject matter or cause of action or the place of its origin. When a jurisdiction is spoken of, it has not respect to the residence of the plaintiff, who voluntarily submits himself and his claim to the tribunal selected by himself, but to the subject matter or cause of action, and the person of the defendant, who are subjected to the jurisdiction by force of the law creating the tribunal and declaring its powers.

The jurisdiction of the superior court of Buffalo as it existed at the time of the adoption of the judiciary article of the constitution, has been supposed to furnish a reason for construing the constitution as giving the legislature authority so to extend the limits of the jurisdiction of the courts named, as to permit them, at the instance of a resident within the locality within which these courts exist, by their process to subject persons and causes of action in all parts of the State, to their jurisdiction.

The jurisdiction of the superior court of Buffalo was not made, to depend upon the residence of the plaintiff, but by the act of its creation (ch. 96 of the Laws of 1854, § 9), it had jurisdiction of certain actions and proceedings “when the cause of action arose, or the subject thereof was situate in the city of Buffalo,” or “when the contract was made in the city.” The act did not make it necessary that the defendant should be a resident of, or be served with process within the city.

In Bidwell v. Astor Mut. Ins. Co., 16 N. Y., 263, the question of jurisdiction, not having been raised in the court below, was not considered in this court. But a single question at all relevant to the case in hand was decided in International Bank v. Bradley, 19 N. Y., 245,—viz: that, after judgment, it was to be presumed, in support of the jurisdiction of the court, that a defendant, sued as an indorser of a note dated at Buffalo, though residing elsewhere, and occupying no tenement or place of business in Buffalo, made his indorsement within the city, and this brought the case directly within the provision of section 9 of the act before quoted. The constitutionality of that provision, or whether that was consistent with the strict local character of the court, was not considered. It was further held, that the court having jurisdiction of the cause of action, it was immaterial, under the statute, whether the defendant was served within the city.

It is not necessary to controvert or question the authority or the correctness of this decision, or to suggest that the legislature may not give a local court jurisdiction over causes of action originating, or actions upon contracts made, within the limits of its jurisdiction, or over persons served with process within the jurisdiction, in actions upon contracts made, or in transitory actions originating, elsewhere. The jurisdiction attempted to be exercised-here is in respect to a cause of action originating outside of the city, and over a corporation not located or having a place of business within the city. Until this new meaning of the revised judiciary article of the constitution was discovered, the jurisdiction of city, county and other local courts was confined to causes of action originating within the territorial limits of the tribunal, or to cases in which the party proceeded against resided in, or was served with process within, their jurisdiction ; and to call a court a local court, or a jurisdiction local, merely because the plaintiff may reside within the jurisdiction of his choice, is at variance with every idea that has heretofore been entertained by legislators or jurists of a local jurisdiction, or a court of limited territorial powers.

My judgment is that the legislation which seeks to extend the territorial jurisdiction of the court to matters and persons without the limits of the city of Brooklyn, is a palpable perversion of the constitution, and cannot be sustained.

The causes of action in all the cases now before us arose in the city and county of Yew York, and the corporation defendant is not located, and has no place of business, within the city of Brooklyn, and it follows that the court had no jurisdiction of the causes of action or of the defendant; and the legislature could not, under color of conferring further civil and criminal jurisdiction, have given the court jurisdiction of. the actions.

As my brethren, with a single exception, agree with these views, and this result, it is unnecessary to consider another fatal objection to the jurisdiction of the court. Whatever jurisdiction the court had, at the time of the commencement, and during the pendency of these actions, was under chapter 470 of the Laws of 1870, as amended' by chapter 282 of the Laws of 1871. Under those acts the court had no jurisdiction over corporations, except such as transacted their general business within the said city, or were established by law therein.

But, as my brethren have not considered, and, therefore, express no opinion upon the construction of these statutes, the decision is placed solely upon the ground first considered.

The objection to the jurisdiction was not waived by an appearance in the action, and an answer therein, setting' up the objection (Burckle v. Eckhardt, 3 N. Y. [3 Comst.], 132 ; Code, § 148).

The judgments should be reversed and complaints dismissed, with costs, for want. of jurisdiction in the city court of Brooklyn. .

Judgment accordingly. 
      
       The word “jurisdiction” is used in' two very distinct senses which should be clearly distinguished. It primarily and properly means the. cognizance of the court,—its power as conditioned upon the character of the persons and things concerning which it may administer justice; as when it is said that the supreme court has no jurisdiction of a mechanic’s lien foreclosure. In a secondary sense, it is used as a brief expression to indicate the territorial boundaries of the exercise of political or judicial power; as when it is said that a crime was committed without the jurisdiction of the court, meaning that it was committed at a place beyond the boundaries of the process of the court.
      In the case of Yogt, in extradition, the treaty provided for the surrender of persons guilty of certain crimes “committed within the jurisdiction ” of the demanding nation, using the word in the secondary sense, to designate the place of commission ; and the district court erroneously construed it as if it were used in the primary sense, and entitled the demanding nation to the surrender of the offender, if its tribunals could take cognizance of the offense, without reference to the place of its commission.
      
        In the case, in the text, the word, as used in the clause of the judiciary article in question, is construed in the primary sense, as meaning the power of cognizance, and, moreover, is held to be controlled by that part of the clause which recognizes and perpetuates the local character of the courts, so that the extended powers of cognizance given can only be exercised within the local boundaries.
     
      
       See also Barnes v. Harris, 4 Id., 374.
      A constitutional provision may be waived like any other objection (Connors v. People, 50 N. Y., 240 ; Embury v. Connor, Id., 511 ; Van Hook v. Whitlock, 26 Wend., 43).
      So far as the objection goes to the service of process on the person, it is waived by appearing generally and pleading to issue without objecting. Where the failure of jurisdiction is as to the subject matter, —e. g., the locality of lands,—it is not waived by appearance, &c. (McCormick v. Pennsylvania Central R. R. Co., 49 N. Y., 303).
     