Frost v. Weehawken Wharf Co.

33 Misc. 736, 68 N.Y.S. 399

• Court: City of New York Municipal Court
• Decided: January 15, 1901
• Status: Published

Opinion

Conlan, J.

In considering this appeal we propose to confine ourselves chiefly to the questions raised as to the jurisdiction of the court. The provisions of the Code of Civil Procedure are not ambiguous, hut distinct and certain. Section 315, upon the subject, is as follows: “ The jurisdiction of the City Court of the city of New York extends to the following cases: An action against a natural person, or against a foreign or domestic corporation, wherein the complaint demands judgment for a sum of money only.”

A mere glance at the complaint before us is sufficient to show that that the kind of judgment demanded is not one contained within the limitation above quoted. It is clear that the same •does not demand a judgment for a sum of money only, for that is something that may definitely he determined and fixed beforehand, as to the amount, in dollars and cents, to which the plaintiff deems himself entitled. He concedes by the form of his prayer for judgment, that the amount of the same is not a definite and fixed sum, but something to which he is or may he entitled after a judicial examination; and that is not what is contemplated by the provisions of section 315, conferring jurisdiction. The meaning of the section of the Code under consideration, is that he must demand in his prayer for judgment a specific sum in dollars and cents, and not for such an amount as may he found due upon an accounting. If his action were one for unliquidated •damages, he would certainly have named an amount as the sum to which he believed himself entitled; and, his action being upon contract, if a specific sum is due, he could certainly calculate and determine it, and this is precisely what the Code says he must do to bring himself within the limitation. Much that the appellant has argued upon his brief might he applicable here if this were not a court of limited jurisdiction, but authorities, which are controlling upon jurisdictional questions in courts of general jurisdiction, are not always in point here, and the converse of the proposition is generally true. Again, the plaintiff’s attempt to cure, what he evidently supposed was a fatal defect in his pleading, hy asking for an amendment upon the trial, was clearly one which would not have relieved the situation. He said: “ I desire to make a motion to amend the prayer of the complaint so as to read as- follows,” and then follows a proposed unsubstantial amendment, which does not materially change the form of the demand for judgment, and the court, in determining the motion, said, “ that motion will involve an accounting any way, if granted; I do not see that we have jurisdiction of this action.” And this was the only attempt made to change the form of the prayer for relief, or the demand for judgment. But we have before, in the case at bar and upon a former appeal, adjudicated this precise question, and see nothing in the case as now presented to call for any change of view. Having reached a conclusion, that the judgment appealed from should be affirmed, we have not considered the question of insufficiency of pleading, the other ground of the appeal therefrom. Judgment appealed from affirmed, with costs.

McCabthy and Sohuchman, JJ., concur.

Judgment affirmed, with costs.