64 N.Y.S. 953 | N.Y. App. Div. | 1900
The. action was originally brought against John F. Harriot, as property clerk in the police.department in the city of New York, to recover money which was in his possession and which was alleged to be the proceeds of property stolen by one Frank and found in bis
It is established that the Municipal Court is not an off-shoot, or continuation of the old District Court of the city of Hew York, but is a new court created by the charter of the Greater Hew York (Laws of 1897, chap. 378), with no other or different powers than are given to it in that statute, or which might be given to it by the Legislature under the authority of the Constitution. (Matter of Schultes, 33 App. Div. 524; Worthington v. London Guarantee Co., 47 id. 609.) It is a court of limited and special jurisdiction and can exercise no power except such as the statute has given to it. The right to compel an interpleader upon motion is given by section 820 of the Code of Civil Procedure; and except so far as that right is given to common-law courts by express provision of the statute it is not given at all. Section 820, however, applies only to the Supreme Court, the City Court of New York, and the County Courts (Code Civ. Proc. § 3347, subds. 4, 6), and it affects the power of no other court than those. Were it necessary to determine whether under the present statute the Municipal Court had power t¿ require parties to inter-.plead as the District Court formerly had, we should have great
Lieberman made no objection when it was sought to bring him in as a. party defendant, and the recital in the order, which must betaken to be true, is that it was made with his consent. It is true that the plaintiff objected to the order; when-it had been granted, however, he took no steps to review it, but apparently-acceded to it and proceeded to enter judgment against Lieberman as defendant in the place of Harriot. He, therefore, has put it out of his power to raise any question as to the propriety of that order.
The-court had jurisdiction of the subject-matter of the action and when Lieberman, who was a resident of the city of'New York, consented to be made defendant, he submitted himself to the jurisdiction of the court and he is not now at liberty to complain that the court had no jurisdiction to. render judgment against him in a proper case. The question then whether he was properly made a defendant is not before us for decision.
But the complaint alleged that the cause of action originally ■ belonged to one Frank, and had been assigned to the .plaintiff on the 17th of June, 1899. That allegation was especially denied by the answer which also denied other allegations -necessary to the plaintiff’s recovery. Upon that state of the pleadings it is clear that the plaintiff could not recover until he had proved the controverted facts which were essential to entitle him to a judgment. None of those were proved, and, therefore, it was error for the court to direct judgment upon the pleadings as was done by the .Municipal Court justice. ' It is quite true that there appears among the papers in the case what is said by counsel to be an assignment from Frank to the plaintiff, but that assignment was not'proved upon the trial and was not produced in evidence, and if it had been,- the defendant, having denied it, had a right to show that it was not executed or not delivered. This opportunity he was refused, the court saying that ■ it had no jurisdiction to pass upon the questions raised by the defendant, and, therefore, ordered a verdict for the plaintiff.- It.is rather a peculiar state of affairs that the court had jurisdiction to assume as true all the allegations of the complaint, although controverted in the answer, but no jurisdiction to. take the -defendant’s' proof to overthrow them. It is clear that Lieberman, having denied
Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.
Determination of the Appellate Term affirmed' to the extent stated in opinion, and case sent back to the Municipal Court for new trial, with costs to appellant to abide event.