
    Aimee Hempsted, Appellant, v. The White Sewing Machine Company, Respondent.
    Second Department,
    November 19, 1909.
    Costs — Municipal Court — dismissal for want of jurisdiction—stay — failure to pay costs.
    The Municipal Court on dismissing an action for assault for want of jurisdiction may give costs to the defendant.
    The Supreme Court will stay the prosecution of an action for assault where costs awarded to the defendant by the Municipal Court on the dismissal of a complaint for the same tort remain unpaid.
    Appeal by the plaintiff, Aimee Hempsted, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of May, 1909, staying proceedings until the payment of costs in a former action.
    
      Robert Stewart [R. G. Barclay with him on the brief], for the appellant.
    
      Emil P. Korhus, for the respondent.
   Hirschberg, P. J.:

The order appealed from stays the prosecution of an action in the Supreme Court until the payment by the plaintiff of the costs of a former action brought by her for the same cause in the Municipal Court of the city of Hew York, which terminated in a judgment dismissing the' complaint, with costs. The action is for assault, and it was alleged by the defendant on the hearing at Special Term on information and belief that the dismissal in the Municipal Court was because of want of jurisdiction to determine the issue on the merits, by virtue of subdivision 14 of section 1 of the Municipal Court Act (Laws of 1902, chap. 580, as amd. by Laws of 1905, chap. 513).

The appellant claims that the Municipal Court, having no jurisdiction of the subject of the action, could not. enter a judgment for costs in favor of the defendant. In Sentenis v. Ladew (140 N. Y. 463) the court said (p. 467): “If jurisdiction is prohibited and the case is one where consent cannot confer it, it is an unsettled question whether the court, upon dismissing the cause, can render any judgment, even for costs. It does not seem ever to have been the subject of adjudication in this court, and the decisions of the lower courts and of the courts of other States are somewhat conflicting upon this point.”

Since that decision was rendered it was held in Day v. Sun Insurance Office (40 App. Div. 305) that costs may be awarded on the dismissal of an action where the court decides that it has no jurisdiction to entertain it. The court said (p. 307): “ Although the courts have no jurisdiction to entertain this action, yet they have the power, where the question of the jurisdiction of the subject-matter has been presented to them, to award costs, even when they decide that they have no jurisdiction of the action. (Thiem v. Madden, 27 Hun, 371.) Where a party brings into co'urt a case over which the court has no jurisdiction, and the suit is dismissed for lack of jurisdiction, costs may be awarded against him, for he, by bringing his action, has submitted himself to the jurisdiction of the court. (Simmons v. Simmons, 32 Hun, 551.) The affirmance, therefore, must be with costs against the plaintiff.”

The appellant further claims that the court should refuse to enforce the Municipal Court judgment by means of a stay in the spirit of the decision in Hirschfield v. Hassett (59 Misc. Rep. 154). That case, however, was one where the Municipal Court granted a stay, and the appeal was dismissed, the court holding incidentally that section 779 of the Code of Civil Procedure was limited by the express terms of subdivision 6 of section 3347 to courts of record. That the Supreme Court should stay a trial in that court until the costs of a similar precedent action in the Municipal Court have been paid was expressly held in Wilner v. Independent Order Ahawas Israel (122 App. Div. 615), and an order denying such a stay was reversed.

The order is affirmed, with ten dollars costs and disbursements.

Woodward, Burr, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  