Weinstein v. Douglas

51 Misc. 559, 101 N.Y.S. 251

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1906
• Status: Published

Opinion

Dowling, J.

This case came before the lower court upon an agreed statement of facts signed by the attorneys for the respective parties. No affidavit as provided for by section 241 of the Municipal Court- Act was submitted, and the making of such affidavit was expressly waived by the stipulation. This court has held that such an affidavit was necessary to confer jurisdiction upon the court to render a judgment. Lax v. Fourteenth Street Store, 49 Misc. Rep. 627; 97 N. Y. Supp. 396. It is urged by the respondent that, the parties having expressly waived the making of such affidavit, they thereby conferred jurisdiction upon the Municipal Court to determine the questions submitted to it. Parties can only waive . jurisdiction over the person and cannot confer jurisdiction over the subject-matter even by consent. Dudley v. Mahew, 3 N. Y. 9. Jurisdiction of the subject-matter is the power to act and to- determine whether the particular facts presented call for the exercise of abstract power. Hunt v. Hunt, 72 N. Y. 217. Municipal Courts are creatures of the statute and have no jurisdiction except such as is specially conferred thereby. Tannenbaum v. Natchtigall, 29 Misc. Rep. 759. It follows that the affidavit required by section 241 is essential to confer jurisdiction upon the Municipal Court over the subject-matter involved in the facts presented, and the absence of such an affidavit precludes the court from entertaining the case.

Gildersleeve and Dugro, JJ., concur.

Judgment reversed, but without costs.