—Section 13 of the act relating to the district courts of this city, passed April 13,1857, provides that where the defendant is not a resident of the city, or where the plaintiff is not a resident, and gives the security required by section 23 of that act, the summons must be returnable in not less than two, nor more than four, days from its date, and must be served at least two days before the time for appearance mentioned therein. And further, that in all other eases it must be returnable not more than twelve days from its date, and must be served at least six days before the time of appearance. Section 23 referred to, provides that plaintiffs not residing in the city and county of FTew York shall, before the issuing of the short summons, as provided in section 13, file with the clerk of the court a written undertaking, &c. Prior to the act of 1857, a short summons issued from a district court, in favor of a nonresident plaintiff, upon his giving proof of the fact of non-residence, and tendering to the justice the security required by law. (Act to abolish Imprisonment for Debt, &c., Laws q/'1831, p. 396, § 32.) And in respect to this proceeding, section 32 of the act of 1831, and section 13 of the act of 1857, are substantially the same. Under the former it has been held that the plaintiff might proceed by long or short summons at his option, but if he choose the latter mode, he must give security. It was a privilege, not a restriction. (Nichols a. Tracy, 1 Sandf, 278; King a. Dowdell, 2 Ib., 131; Kelly a. Kelly, 2 E. D. Smith, 250.) Section 13 of the act of 1857 imposes no restriction, but grants a privilege upon compliance with a condition,— namely, giving security, in which ■ case the summons may be short. The language of the section is: “ Where the plaintiff is a resident, and gives the security required by section 23but where he does not give the security, it seems to me to be clear that he is then controlled by the second subdivision, which provides that in all other cases the summons must be returnable not more than twelve days, &c. There are no words of prohi*424bition against proceeding by long summons. That is the general mode, while the proceeding by short summons is a speciality allowable when security is given. For these reasons I think the justice erred in dismissing the complaint. It is said that section 45 of the act of 1857 renders it the duty ¿f the justice to dismiss the action in all cases, if it appears that the plaintiff is a non-resident, and has not filed the security contemplated by section 23. I submit with great respect that such a construction is not warranted by the language of the section referred to. It provides that the justice shall dismiss the action when it is objected that the plaintiff is a non-resident of the county, and has brought the action without giving the security required by the act. I think I have shown that security is only required when the proceeding is by short summons. Indeed, the language of section 23 so distinctly provides, as I understand it, in connection with section 13. It is as follows: “Plaintiffs not residing in the city and county of Hew York' shall, before the issuing of the short summons, as provided in subdivision one of section 13 of this act, file with the clerk of the court, a written undertaking,” &c. There is nothing, therefore, in section 45 which affects adversely the conclusion at which I have arrived, because it appears that the justice has no power to dismiss the complaint, except in cases where a non-resident plaintiff proceeds by short summons without giving security.
The dismissal of the complaint was not upon failure of proof, or upon the ground that the facts alleged by the plaintiff were not sufficient to constitute a cause of action. The case differs, therefore, from Monell a. Weller (2 Johns., 8). The justice dismissed the action upon the ground that he had no jurisdiction, and his decision is reviewable in this court for that reason. I think the justice had jurisdiction, that he erred in dismissing the complaint, and that the judgment should be reversed.