Allen v. Wolkof

Benedict, J. (dissenting).

I dissent from the conclusion reached by my associates that the Municipal Court has no jurisdiction of an action on the bond of a city marshal where the amount claimed exceeds $1,000.

Appellant contends that such jurisdiction exists by virtue of the last clause of subdivision 2 of section 6 of the Municipal Court Code. A reading of section 6 makes it clear that that section does not in terms place any monetary limit upon the jurisdiction of the Municipal Court in an action upon a marshal’s bond. Subdivision 1 enumerates a. number of classes of actions jurisdiction of which is conferred subject to, the general *126limitation that the amount claimed does not exceed $1,000. Subdivision 2 contains no general limitation, but confers jurisdiction of a number of actions and proceedings, the last of which is an action upon the bond of a marshal of the city of New York.” The only one of the actions and proceedings specified in subdivision 2 in which the jurisdiction is limited in amount is an action to recover a chattel, and this limitation is not stated generally as in subdivision 1, but specifically with respect to that particular form of action. The insertion of the general limitation at the beginning of subdivision 1, with its omission in subdivision 2, is strong evidence of the legislative intent that the limitation should not apply to those actions and proceedings enumerated in subdivision 2, except as otherwise specially provided. The language of the statute is plain and unequivocal, and I see no room for the application of canons of construction, in a vain striving to ascertain what was the legislative intent.

The history of the statutory provisions relative to marshals ’ bonds, and actions thereon serves to support the conclusion that jurisdiction of such actions is not limited in amount by statute. It is unnecessary to recite the earlier acts in detail. Suffice to say that they required each marshal to give a bond, which was to be approved first by the mayor, and under the charter by the city clerk. It was provided that leave to prosecute such a bond should be obtained from a justice of the Court of Common Pleas, and later from a justice of the Supreme Court. The action, when so directed by such justice, might always be brought in the District Courts until they were superseded by the Municipal Court, and thereafter in the Municipal Court, also in certain other courts, when so directed by the justice; and jurisdiction of such actions was conferred on the District Courts and the Municipal Court, when leave to sue. *127therein was granted by such justice, without any express monetary limitation. Laws of 1862, chap. 484, §§ 4-7; Consol. Act (Laws of 1882, chap. 410), § 1285, subd. 9; Id. §§ 1699-1702; Greater N. Y. Charter (Laws of 1897, chap. 378), § 1364, subd. 10; Id. § 1428; Code Civ. Pro. § 3215, subd. 4. Jurisdiction of several other classes of actions, but not of all, was at the same time subject to a monetary limitation, first of $250 and then of $500; but there was no general limitation of that character. Laws of 1857, chap. 344, § 3; Code Pro. §§ 52-54; Laws of 1858, chap. 334, § 5; Laws of 1862, chap. 484, § 17; Code Civ. Pro. § 3215; Consol. Act (Laws of 1882, chap. 410), § 1285; Greater N. Y. Charter (Laws of 1897, chap. 378), § 1364.

The Municipal Court Act (Laws of 1902, chap. 580) enumerated severally the cases in which the court should have jurisdiction, including, “ An action upon the bond of a marshal of the city of New York, as prescribed in this act.” § 1, subd. 5. The penalty of a marshal’s bond was fixed at $2,000 (§ 294), and it was to be approved by the city clerk. Id. Leave to prosecute such a bond was to be obtained from a justice of the Supreme Court (§ 295), who might direct it to be prosecuted in the Municipal Court, in the City Court of the city of New York in a borough within the county of New York, or in a County Court in any other borough. It was provided that, Either of said courts shall have jurisdiction in actions brought on such bonds.” No monetary limit is stated.

The Municipal Court Code (Laws of 1915, chap. 279) contains the jurisdictional provisions already referred to, which seem to be rather a regrouping of the provisions of section 1 of the Municipal Court Act, with a view to stating them in more concise language and more nearly logical order, than an attempt to modify them extensively, except to raise the monetary limit in *128certain classes of cases to $1,000. One other important change, having a special bearing on the subject under consideration, may be noticed. In the Municipal Court Act it was provided that the jurisdiction extended to actions against a domestic corporation or a foreign corporation having an office in the city of New York, where the amount claimed did not exceed $500 exclusive of interest with costs. § 1, subd. 18. Under this provision it was held that in an action on a marshal’s bond against a foreign corporation, as surety thereon, the jurisdiction of the Municipal Court was limited to $500. Frieland v. Union Surety Co., 43 Misc. Rep. 38. See particularly opinion of Mr. Justice Greenbaum. The Municipal Court Code (§ 6, subd. 4) gives jurisdiction of actions and summary proceedings ‘ ‘ within the foregoing limitations ” by and against domestic and foreign corporations, thus eliminating the distinction between individuals and corporations.

Other provisions of the Code (§ 146) fix the penalty of a marshal’s bond at $3,000 and provide for its approval by a justice of the Municipal Court. Leave to prosecute such a bond is to be obtained from a justice of the Municipal Court (§ 147), and it is provided that upon such leave being obtained the action may be prosecuted in that court. There is no limitation in amount, and no provision is made for the prosecution of such an action in any other court. Id.

From these statutory provisions we see that from 1862, when the office of marshal was first created, to the present time, the action on a marshal’s, bond has always been treated by the legislature as in a class by itself, and subject to different regulations from other actions prosecuted in the District Courts and the Municipal Court. The provisions of the Municipal Court Code, placing the whole matter of marshals’ bonds under the control of that court, as. well as the *129elimination of the provisions of the Municipal Court Act limiting jurisdiction in actions against corporations to a certain amount, tend strongly to show that the legislature did not intend to place a monetary limit upon the jurisdiction of the court in this class of suits.

It may he noted in passing that in Justices’ Courts there is no monetary limitation in actions upon bonds taken by a justice of the peace. Code Civ. Pro. § 2862, subd. 5. See, also, Code Pro. § 53, subd. 6.

It is urged that, inasmuch as under the present law the penalty of a marshal’s bond is required to be $3,000, the legislature cannot be deemed to have intended to grant jurisdiction without monetary limit to the Municipal Court, because to do so would transgress the provisions of section 18 of article VI of the Constitution of the state, which, read in connection with section 14 of the same article, forbids jurisdiction in excess of $2,000 in actions for the recovery of money only to be conferred on an inferior court. The answer to this argument is that although the penalty in a marshal’s bond is $3,000, an action thereon may be for a less amount, that is, for the amount of the damage to the party aggrieved. Doubtless under the Constitution no action for damages in excess of $2,000 on such a bond could be maintained in the Municipal Court. Whether it could be maintained in any other court we need not decide. But the action here is. for $2,000, and that does not transgress the constitutional limitation.

For these reasons, I am of opinion that the jurisdiction of the Municipal Court in actions on marshals’ bonds is not limited to $1,000; but that an action in that court on such a bond may be brought for any amount up to $2,000.

Judgment affirmed, with costs.