Herpe v. Herpe — 89 Misc. 142

Majority

p. 142

Jennie Herpe, Respondent, v. Isidore Herpe, Defendant. The German Savings Bank of Brooklyn, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1915.)

Headnote

Jurisdiction — of Municipal Court of city of New York — consent of parties cannot confer jurisdiction:—maintenance of action at law against savings bank" to recover moneys in trust.

A wife cannot maintain an action at law against a savings bank to recover her own money which her husband deposited in his own name in trust for her.

Assuming that she may have an action in equity to establish a trust in her favor, the Municipal Court of the city of New York has no jurisdiction of such an action.

Consent of the parties cannot confer jurisdiction of the subject-matter of an action beyond the jurisdiction of said court.

Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff for $185 damages, besides costs, entered after a trial by the court.

Hector McG. Curren, for appellant.

Leo Rosenberg, for respondent.

The action was brought to recover the amount of a savings bank deposit made on July sixth last by “I. Herpe in trust for Jennie Herpe.”

The answer offered to- pay the deposit into court or to surrender it upon being discharged of all liability therefrom.

No interpleader was had nor was there any payment into court.

On the trial defendant Herpe’s counsel in his behalf

p. 143

withdrew his answer. Plaintiff testified that the deposit her husband made was her money; that her mother gave it to her; that it represented her savings.

Assuming that plaintiff may have an action in equity to establish a trust in her favor, she has none at law. Hemmerich v. Union Dime Savings Inst., 205 N. Y. 367 , 371. Moreover, the Municipal Court has no jurisdiction of an equitable action. Consent does not and cannot confer jurisdiction of the subject-matter of an action beyond the Municipal Court jurisdiction.

Judgment reversed, with costs, and complaint dismissed, with costs to the appellant, without prejudice to an action in equity.

Bijur and G-avegan, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.