Maisch v. City of New York

127 A.D. 424, 111 N.Y.S. 645, 1908 N.Y. App. Div. LEXIS 2000

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1908
• Status: Published

Opinion

Miller, J.:

This is an appeal from an order denying a motion for a retaxation of- costs. ' ■ ■ -

• ¡Section 3228, subdivision 5, of the Code of Civil Procedure providesIn all actions hereafter brought in the Supreme Court, triable in the county of New York or the county of Kings, which could have been brought, except for the amount claimed therein, in the City Court of the city of New York or the County Court of Kings county, and in which the defendant shall have been personally served with process within the counties of New York or Kings, the plaintiff shall. recover no costs or disbursements unless he shall recover five hundred dollars or more.” This action was brought in the Supreme Court and less than $500 was recovered.

Where the action may properly be brought in the county of Kings, said section 3228, subdivision 5, was not intended to require that it be brought in the City Court of New York. Moreover, the City Court of the city of New York does not have jurisdiction of actions against the city of New York. (O’Connor v. City of New York, 191 N. Y. 238.) The respondent, however, contends that the County Court of Kings county has jurisdiction of such an action and relies upon the change made in section 262 of the charter (Laws of 1897, chap. 378) by the revision of 1901 (Laws of 1901, chap. 466) which eliminated the sentence, “ The Supreme Court shall have exclusive jurisdiction over all actions or special proceedings wherein The City of New York is made a party defendant.” That amendment, however, did not have the effect of conferring jurisdiction on the County Court. The reason for it is explained in the case of O’ Connor v. City of New York (supra), which was because of the extension of the jurisdiction of the Municipal Court to actions against the city wherein the amount involved did not exceed $500.

*

Section 340 of the Code of Civil Procedure defines the jurisdiction of County Courts and provides by subdivision 3 that such jurisdiction extends “ to an action-for any other cause, where the defendant is, or, if there are two or more defendants, where all of them are, at the time of the- commencement of the action, residents of the county, and wherein the complaint demands judgment for a sum of money only, not exceeding two thousand dollars.” So that this case turns on the question whether the city of New York is a resident of the county of Kings within the meaning of that section, and of article 6, section 14, of the State Constitution, which provides that the jurisdiction of County Courts shall not be extended so as to autliorize an action therein in .which any person not a resident of the county is a defendant. Article 8, section 3, of the State Constitution provides that all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases: as natural persons. In the sense in Which the word-.“ resident” is thus used, a domestic corporation must bé a.resident of some county. Section 341 of the Code of Civil Procedure provides: “For the purpose of determining the jurisdiction of a County Court, in either.of the cases specified in the last section, a domestic corporation or joint-stock association, whose principal place of business is established, by or pursuant to a statute, or by its articles of association, ¿or is actually located within the county, or in case of a railroad corporation where any portion of the road operated by it is within the ' county, ■ it is deemed a resident of the county; and personal service of a summons, made within the county, as prescribed in this act, or personal service of a mandate, whereby a special proceeding-is commenced, made, within the county, as prescribed in this act for personal service of a summons, is sufficient service thereof upon a domestic corporation wherever it is located.” And section 431 prescribes how personal service of summons shall be made, on a domestic corporation, i. s., “ by delivering a copy thereof, within the State, as follows: 1. If the action -is against the mayor, aldermen and commonalty of the city of Hew York, to the mayor, comptroller or counsel to the. corporation.” It thus appears that the Legislature has expressly included municipal corporations in the term “ domestic corporation” as used in said sections. 341,,and 431, and it follows that the respondent’s contention that said section- 341 does not apply to municipal corporations cannot be sustained. It is understood that the principal place of .business of the. city of Hew York is in the borough of Manhattan, from which it follows that the County Court of Kings county does not have jurisdiction of actions against the city of Hew York.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted* with costs.

Jerks, Hooker, Gaynor and High, JJ., concurred.

Order reversed,, with .ten dollars costs and disbursements* and motion-granted,, with costs. -■

See also Mun. Ct. Act (Laws of 1902, chap. 580), § 1, suhd. 18, as amd. by Laws of 1905, chap. 513.— [Rep.