This appeal from an order of affirmance by the Appellate Term was allowed by the justices of that court. The present New York City Municipal Court Code took effect on September 1, 1915, this action was begun in the Municipal Court on October 17, 1916, and there seems to be no question that the Municipal Court had jurisdiction thereof. But theretofore there had been four other litigations instituted by the assignor *661of this plaintiff against this defendant. Of the learned justices of the Appellate Term, two were of opinion that the principle of res adjudicata was not available to the defendant in this action, but the third was of opinion that the plaintiff was “ estopped by the judgment against her assignor, already pronounced in the Municipal Court,” and that “ The defendant had, by force of the prior judgment of dismissal, a Vested legal contractual right which could not be taken away from him by retrospective enactment, especially where, as in this case, the act itself, which confers the new remedy, distinctly declares that it shall not operate retroactively ” (102 Misc. Rep. 313).
I think plaintiff was not “ estopped ” and that the defendant had no “ vested legal contractual right ” perforce of the said former judgment “ already pronounced in the Municipal Court.” The history of that judgment is as follows: The action was begun prior to September 1, 1915, and so before the present Municipal Court Code took effect. The plaintiff’s demurrer to the answer was sustained, and the plaintiff gained judgment absolute. Upon appeal the Appellate Term held that the demurrer was well taken, but that the defendant should have had leave to plead over, and consequently reversed the judgment. The defendant answered, the case was tried, and while sub judice the judgment in Seabott v. Wanamaker (164 App. Div. 531) was handed down, that decided the Municipal Court had no jurisdiction of that kind of action. The Municipal Court thereupon dismissed the plaintiff, with costs.
All that was determined in the prior action is that the court did not have jurisdiction. There was no adjudication upon the merits. In Clark v. Scovill (198 N. Y. 284) the court, per Vann, J., say: “ The first and second issues involved the merits, but the third did not, and since the. court did not have jurisdiction, as we held on a former appeal in this action, obviously it could not pass upon any issue involving the merits. (Clark v. Scovill, 191 N. Y. 8.) A court without jurisdiction cannot determine an action on the merits, but can simply dismiss for want of power to try.” In Hughes v. United States (4 Wall. 232, 237) the court, per Field, J., after stating that the petition was dismissed for
*662want of jurisdiction, etc., say: “ It requires no argument to show that judgments like these are no bar to the present suit. In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” Freeman on Judgments (4th ed. § 264) says: “ There can be no doubt that the dismissal of an action for want of jurisdiction is not a judgment on the merits, and cannot prevent the plaintiff from subsequently prosecuting his action in any court authorized to entertain and determine it,” citing inter alia, Smith v. McNeal (109 U. S. 426); Smith v. Adams (24 Wend. 585); Blin v. Campbell (14 Johns. 432). In Smith v. Adams (supra) Bronson, J., says: “ When the bill is dismissed for want of jurisdiction, we, in effect, say to the party, £ we will not listen to your complaint — it belongs to another forum — go to the proper court and litigate the matter there/ There is an apparent incongruity in dismissing the bill for want of jurisdiction, and at the same time making a decree which concludes the party as to any portion of the merits of the controversy when he resorts to the proper forum for redress.” (See, too, 2 Black Judg. [2d ed.] § 693.)
All that could avail the defendant in the nature of “ contract ” or “ vested right ” or ££ estoppel ” with respect to the present action perforce of the said prior judgment, was that the court had adjudged that it did not have jurisdiction of that kind of action when that action was begun. But this avails nothing to the defendant in this action if the "court had jurisdiction of the present action when it was instituted.
The other three litigations did not involve the merits so as to arm the defendant in defense of the action at bar. The first, brought in the Municipal Court, terminated because a judgment was not rendered within the statutory time; the second, brought in a County Court, was discontinued upon *663stipulation; the third, instituted in the First District Court of Jersey City, N. J., resulted in a judgment for the defendant upon the ground that the statutes that were the basis of plaintiff’s action were not applicable in that State. Freeman on Judgments (Vol. 1 [4th ed.], § 261) says: “ Judgments of Nonsuit, of Non Prosequitur, of Nolle Prosequi, of Dismissal, and of Discontinuance are exceptions to the general rule that when the pleadings, the court, and the parties are such as to permit of a trial on the merits, the judgment will be considered as final and conclusive of all matters which could have been so tried.”. In Loeb v. Willis (100 N. Y. 235) the court, per Earl, J., say: “ If a suit be discontinued at any stage, or the judgment rendered therein be set aside, or vacated, or reversed, then the adjudication therein concludes no one and it is not an estoppel or bar in any sense.”
The learned justices of the Appellate Term are not unanimous in their views of the construction and application of section 181 of the Municipal Court Code, which reads as follows: “ This act shall not be retroactive nor shall it create a vacancy in any office or employment.” If the statute is not retroactive, but prospective only, it certainly must apply to actions begun after the statute became effective, consequently to the present action, and, therefore, the jurisdiction of the court as to it is determined by the present law. The action at bar is not in the category of litigation pending at the time the statute extended the jurisdiction of the court, for the present action was instituted only after the statute became effective. The legislative declaration against retroaction expressly but makes the statute prospective. When it is declared that a statute shall not be retroactive, it is in effect declared that it shall not destroy or impair vested rights or create a new obligation or a new duty, or attach a new disability to past transactions. (City of New York v. Foster, 148 App. Div. 258, 261; affd., 205 N. Y. 593.) Such legislative declaration against retroaction impliedly could but import that .there was to be no disturbance of vested rights and the like. But what possible “ vested right ” could be asserted by the defendant as preserved by this legislative declaration against retroaction? There had never been any adjudication upon the merits of the controversy. True, the *664court had once adjudicated in a prior" action that it did not have jurisdiction of this kind of action, but the Legislature had extended the jurisdiction in that respect before the present action was instituted. Did the defendant have the vested right that the jurisdiction should not be extended by the Legislature? Did defendant have the vested right that because the plaintiff once could not sue on the cause of action in the Municipal Court, she was precluded forever from suit in that court although the Legislature enlarged the jurisdiction? Did such legislation create a new obligation or a new duty, or attach a new disability, when it afforded an additional forum of redress to the plaintiff? These questions are answered by the statement that “ There is no vested right in any particular remedy.” (Berry v. Clary, 77 Maine, 482, 486; Republic of Costa Rica v. Erlanger, L. R. 3 Ch. Div. 69; Larkin v. Saffarans, 15 Fed. Rep. 149.) In the language of Overton, J., in Jones v. Jones (2 Overt. 5): “ Retrospective, here was inserted from abundant caution. It was intended to embrace, rights, and not modes of redress. The last, from the nature of things must be left open to legislative modification.” (See, too, Wade Retroactive Laws, § 217.) I may add that the general rule against retrospective construction does not control a statute affording a remedy or the rule of procedure in enforcing a right (Myers v. Moran, 113 . App. Div. 427, 428), and if section 181 is referable otherwise, the rule obtains.
The cases cited to us present the existence of judgments upon the merits, or decisions that involve a suit pending. They may be discriminated generally from the case at bar in that there has been no prior judgment upon the merits and that the present action was not a suit pending when the statute became effective.
The order of the Appellate Term should be affirmed, without costs.
Thomas and Blackmar, JJ., concurred; Putnam, J., read for reversal; Rich, J., not voting.