(dissenting). The sole question presented on this appeal is whether the Municipal Court of the City of New York in summary proceedings for non-payment of rent has power to grant judgment on a tenant’s counterclaim in excess of $1,000.
Plaintiff, landlord, brought summary proceedings in the Municipal Court to recover from defendant, tenant, $104 representing two months’ unpaid rent. Defendant pleaded a general denial and a counterclaim for $2,000 as damages for personal injuries due to plaintiff’s alleged negligence in the maintenance óf the premises. The trial court, finding in the landlord’s favor for the rent in the sum of $104 and in the tenant’s favor on her counterclaim in the sum of $1,200, gave judgment in favor of the tenant against the landlord in the sum of $1,096. The Appellate Term' unanimously affirmed. By permission of this court, the landlord appeals from that determination on an abbreviated record that raises only the above stated issue of law.
Appellant contends that the Municipal Court lacked jurisdiction to award judgment to the tenant on her counterclaim in summary proceedings in excess of $1,000, and relies on section 86 of the Municipal Court Code. (Martin v. Bull, 236 App. Div. 637, and Silberstein v. Begun, 232 N. Y. 319.)
Section 86 of the Municipal Court Code provides: “A counterclaim may be interposed and judgment thereon in favor of the defendant *737may be rendered for any sum not to exceed one thousand dollars exclusive of interest and costs.”
The Judiciary Article of the State Constitution (Art. 6, § 18) prohibits the Legislature from conferring upon inferior or local courts any greater jurisdiction than is conferred upon County Courts under that article. But under section 11 of article 6, providing for the jurisdiction of County Courts, which are courts of limited jurisdiction, it has been held that where the County Court acquires jurisdiction of an action by the service of a proper complaint, that court may entertain any defense which the defendant sued in that court may have, even though it involves a counterclaim in excess of the then monetary limitation on that court. (Howard Iron Works v. Buffalo Elevating Co., 176 N. Y. 1.) In that case the Court of Appeals (per O’Brien, J.) said: “The power of the court to render the proper judgment is not limited by the amount of the counterclaim, when jurisdiction of the action is once obtained, but the amount demanded in the prayer of the complaint is the sole test upon that question.”
The Municipal Court of the City of New York is an inferior local court of civil jurisdiction. Subdivision 2 of section 6 of the Municipal Court Code provides that said court shall have jurisdiction of “ * * * a summary proceeding authorized by the Civil Practice Act to recover possession of real property.” Such proceeding is a special proceeding governed by statute. The practice and procedure are contained in the Civil Practice Act, article 83, sections 1410 to 1447, inclusive, which must be read with the relevant portions of the Municipal Court Code. Section 86 of the Municipal Court Code, providing that a judgment on a counterclaim shall not exceed $1,000, is not controlling in a summary proceeding properly brought within the jurisdiction of the Municipal Court of the City of New York.
Section 1425 of article 83 provides that a “ counterclaim may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action,” and if the court finds that the counterclaim has been established in whole or in part, the court “ may give affirmative judgment for the amount found to be due on the counterclaim.”
In Matter of Byrne v. Padden (248 N. Y. 243), a summary proceeding to dispossess a tenant for non-payment of rent brought in the City Court of Long Beach, which by charter" is limited in actions on contract to those in which the sum claimed does not exceed $1,000, the Court of Appeals expressly held that there was no limit to the judgment for rent which might be awarded to the landlord, and said: “ These limitations placed upon the jurisdiction of inferior courts are not upon the theory that they are incap*738able of dealing with larger sums. Their power ordinarily depends upon the amount claimed in the complaint. If it asks more than the sum prescribed, no jurisdiction attaches. It may not act. No subsequent amendment will confer what has never been acquired. But once jurisdiction exists it is not lost because far more than the specified sum may be involved. A County Court may grant judgment in any sum on a counterclaim. (Howard Iron Works v. Buffalo Elevating Co., 176 N. Y. 1.)”
We find it difficult to accept appellant’s argument that while there is no restriction on the amount a landlord may recover for rent in a summary proceeding in the Municipal Court, in spite of the limitations provided in subdivision 1 of section 6 of the Municipal Court Code, there is a restriction on the amount a tenant may recover on a counterclaim interposed in the same proceeding. Clearly that argument is not supported by reason or justice. We think it is not sustained by statutory provision or law.
The cases relied on by appellant and cited above relate to actions and not summary proceedings, and accordingly have no application.
Section 1425 of the Civil Practice Act and not section 86 of the Municipal Court Code controls the determination of the issue of law presented. As above indicated, that section expressly provides that the court may give “ affirmative judgment for the amount found to be due on the counterclaim” (italics ours), and places no restriction on that amount other than what the facts in each particular case indicate to be the proper “ amount found to be due.”
In a summary proceeding in the City Court of Niagara Falls, also a court of limited jurisdiction, the Appellate Division of the Fourth Department permitted defendant, a lessee, to interpose a counterclaim for $5,000 and recover $3,637.29 thereon (.Matter of Atlas, 217 App. Div. 38), and said: “ The counterclaims were within the jurisdiction of the courts below. (Civ. Prac. Act, § 1425; Broadway & 9fih Street, Inc., v. C. & L. Lunch Co., 116 Misc. 440; revd. on another point, 119 id. 486; Howard Iron Works v. Buffalo Elevating Co., 176 N. Y. 1.) ”
The Municipal Court having properly obtained jurisdiction of the summary proceedings, had jurisdiction to grant defendant affirmative judgment on her counterclaim in excess of $1,000.
Accordingly, we dissent and vote to affirm the determination of the Appellate Term affirming the judgment of the Municipal Court.
O’Malley, J., concurs.
Determination of the Appellate Term and judgment of the Municipal Court modified by reducing the judgment on the counterclaim to $1,000, and as so modified affirmed, without costs.