Samodwitz v. Karpe

80 A.D. 496

Opinion

Jenks, J.:

The satisfactory opinion of Lynch, J.,

* renders extended discussion unnecessary. The learned counsel for the appellant insists that section 139 of the Municipal Court Act (Laws of 1902, chap. 580) simply grants an additional remedy, and that notwithstanding that section he has an action upon the facts in this case for conversion perforce of section 1, subdivision 14, of the act because conversion is an injury to personal property. Undoubtedly, conversion is an injury to personal property, but so are actions arising upon a breach of a written contract for the conditional sale of personal property, or based upon the hiring of personal property, or arising upon a chattel mortgage. So that the effect of his argument is that although the act in express terms withholds or rather restricts the jurisdiction of the Municipal Court in such cases, yet the general provision of subdivision 14, section 1, absolutely confers it. This action, as pointed out by the learned Municipal Court justice, plainly arises upon the breach of a written contract for the conditional sale of personal property, and the relative relief and liability of the plaintiff and defendant in that forum must be measured and limited by the express provisions of the act which creates the court, establishes its powers and limits its jurisdiction. Of course, the entire statute is to be read and reconciled, and any general expression therein must be regarded as limited and qualified by the particular provisions of the statute. ( Wormser v. Brown, 149 N. Y. 163; People v. Industrial Benefit Assn., 92 Hun, 311; affd., 149 N. Y. 606.) We do not sit to review the wisdom of legislation, and, therefore, any considerations as to the policy of an act, or as to the injustice of the provisions, however cogent in the mind of counsel, must be addressed to the legislative, not to the judicial, branch of government.

The judgment should be affirmed, with costs.

Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.

Judgment of the Municipal Court affirmed, with costs.

The following is the opinion referred to:

Lynch, J.:

This is an action of conversion. The defendant’s counsel insists that an action in this form will not lie and cites section 139 of the Municipal Court Act as an authority for his contention. I am of the opinion this point is well taken. The section referred to distinctly provides that the plaintiff’s remedy is “an action to foreclose the lien ” as provided in that article (tit. 3, art. 4) and the character of the action brings it within the provisions of the article. The contract (Ex. “ A”) is clearly a “ conditional sale ” and the title remains in plaintiff until the full amount called for by the contract is paid. And even though it he regarded as a “ hiring of personal property ” the same conclusion is reached in so far as the form of action and the remedy to be obtained is concerned.

The plaintiff’s counsel cites section 1, subdivision 14, of the Municipal Court Act as authority for the contention that the action of conversion is maintainable under that subdivision, hut this contention is untenable. This is not an action to recover damages for an “injury to property” as contemplated by that subdivision.

The Municipal Court Act went into effect on September 1, 1902. The contract in this case was made on September 2, 1902, after the provisions of the act had become operative.

The summons was not issued until October 10 and the cause tried October 18, 1902.

Sections 139 and 140 of the Municipal Court Act are new provisions. (See commissioners’ note under § 140; Collins Municipal Court, 116.)

The plaintiff’s complaint must, therefore, be dismissed without prejudice to a new action.