Tyler v. McCollum

26 N.Y. Sup. Ct. 622

• Court: New York Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

'Hardin, J.:

We have not been furnished with any points or argument in behalf of the appellants.

In 1872, upon a demurrer to a complaint like the one before ps, I examined the question of the jurisdiction of this court and came to the conclusion that a State court had jurisdiction and gave judgment for the plaintiff. (Gilbert v. Crawford, 46 How., 222.)

In June, 1873, a similar question was presented to this court in Gilbert v. Priest (65 Barb., 444); and this General Term came to the conclusion that a State court had not jurisdiction. The opinion was delivered by Mullen, P. J., and concurred in by Talcott and E. D. Smith, JJ.

In November, 1873, a similar question was presented in Cook v. Whipple (55 N. Y., 150), and decided by the Court of Appeals in favor of the jurisdiction.

In March, 1877, in Olcott, Assignee, v. MacLean et al. (10 Hun, 277), the General Term of the First Department decided, upon a construction of the act of Congress'of 1874, that jurisdiction was given to the United States District Court exclusively, and that jurisdiction was withdrawn from State courts, and the judgment appealed from was reversed and the complaint dismissed, without costs. The opinion of Daniels, J., was concurred in by Davis, P. J., and Brady, J. (10 Hun, 277), and see 11 id., 396, where the ground of the decision of Olcott v. MacLean (supra), is stated by Davis, P. J.

In October, 1877, Wente v. Young (12 Hun, 220) was decided upholding the jurisdiction of State courts.

In January, 1878, in Kidder v. Horrooin et al. (72 N. Y., 159), the Court of Appeals held that, notwithstanding the act of Congress of 1874, “ a State court has jurisdiction of an action by an assignee in bankruptcy to recover a debt due the bankrupt,” and that ‘ ‘ an intention to deprive State courts of jurisdiction will not be inferred from doubtful language, nor will the words of a statute be extended beyond their strict meaning- to accomplish this result,” (Opinion by Andrews. J.. concurred in by all the other judges, 72 N. Y., 160.)

In April, 1878, Olcott v. MacLean, cited supra from 10 Hun, 277, was decided by the Court of Appeals, and reversed upon the authority of Kidder v. Horrobin, supra, as appears by the Per Curiam opinion in 73 N. Y., 226. And it is there stated that the question of jurisdiction is “not an open question in that court.”

That being the latest authority, and apparently conclusive upon the question now before us, we should hold that we are not at liberty to re-examine the question of jurisdiction, raised in this action at the circuit and passed upon adversely to the defendants.

We, therefore, affirm the judgment appealed from.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.