Head's Iron Foundry v. Sanders — 60 N.Y. St. Rep. 17

Majority

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Head’s Iron Foundry, Resp’t, v. Smith Sanders, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed May 18, 1894.)

Headnote

Justice oe the peace — Jurisdiction.

Subdivision 5 of § 2869 of the Code does not affect the right, given by subdivision 3, to a resident of a city to sue a non-resident of the county in a town adjoining the city.

Appeal from a judgment affirming a judgment of the justice’s court in favor of the plaintiff.

Frank B. Towman, for app’lt; L, M Southworth, for resp’t

The controversy upon this appeal is over the construction of § 2869 of the Code of Civil Procedure, as amended by chapter 74 of the Laws of 1893. That section is as follows: “Sec. 2869. An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases: (1) Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. (2) Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs, where all are non-residents thereof, it may be brought before a justice of the town or city, in which the plaintiff, or either of the plaintiffs, or his attorney, is át the time of the commencement of the action. (3) Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. (4) Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offense was committed, or where property is found. A defendant designated in section two thousand eight hundred and seventy-nine, section two thousand eight hundred and eighty, or section two thousand eight hundred and eighty-one of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. (5) In any town adjoining an incorporated city, no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident of such town.”

The amendment of 1893 consisted in the addition of subdivision 5. Before that was added, the justice, in a case like the present, had jurisdiction under subdivision 3. The question is whether subdivision 5 operates to limit the effect of subdivisions. The defendant claims that it does, while the plaintiff claims that it only operates to limit the first clause, or body, of the section and leaves unimpaired the other- four subdivisions, as granting additional jurisdiction in certain special cases. The first four subdivisions operate to enlarge the jurisdiction of the justice. Bennett v. Weaver, 50 Hun, 111 ; 19 St. Rep. 41 . They are not dependent upon the limitations stated in the first or main clause. They relate to special cases. On the other hand, subdivision 5 operates to diminish the jurisdiction of the justice as given in the main clause. It is, in form at least, only applicable as an exception to the cases covered by the main clause. Reading them together, as they should be, it is provided that an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except that in any town adjoining an incorporated city no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident of such town. Read in this way, subdivision 5 does not affect or limit the positive, inde

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pendent, additional powers given in the other subdivisions. It may be said that, if the legislature had intended that subdivision 5 should control the other subdivisions, it would have been so stated. It stands now only as an exception to the main clause, and not as an exception to the other exceptions. The object, apparently, of the amendment of 1893 was to prevent the oppressive exercise of the jurisdiction of justices of adjoining towns as against or in favor of residents of cities. In such cases there might, perhaps, exist improper practices, but that reason for the act would hardly be applicable to the matters covered by the other subdivisions. In fact its application to those subdivisions would lead to results somewhat absurd. By subdivision 2, a nonresident plaintiff could, before the amendment, bring his action anywhere in the county of defendant’s residence. Bird v. Crane, 26 Hun, 531 . There is no reason for saying that he cannot bring it against a resident of a city in any town adjoining the city, and still the right be given him to bring his action iir any other place in the county, whether near or distant. So, if the defendant is a nonresident, there is no reason for saying that he cannot be sued before any justice of an adjoining town, and still the right be given to sue him anywhere else in the county.. So of an absconding defendant under subdivision 1. Subdivision 4 refers to special cases under other provisions of law. It cannot be assumed that these were designed to be interfered with. The intent of the legislature is the main thing. Peck v. Baldwin, 58 Hun, 310 ; 34 St. Rep. 511 , and cases cited. A construction that leads to a reasonable and consistent result is to be preferred. In Potter’s Dwarris on Statutes, 208, it is said that, “ when the meaning is ambiguous, where the clauses are confused and contradictory, and the words such as admit of two senses, the court will adopt that construction which will best carry the just and reasonable intention of the legislature into effect.” It is not to be presumed that an absurdity or contradiction was intended. People ex rel. W. F. Ins. Co. v. Davenport, 91 N. Y. 585 ; Smith, St. Const. § 518. The probable object in a change of the law is to be considered. By the first clause of the section under consideration a general rule is laid down as to the jurisdiction of a justice. Other cases beyond the scope of this general rule are provided for or referred to in the first four additional clauses. In the fifth clause or subdivision there is a limitation or exception to the general rule, and the more natural meaning of the whole section, constructed as it is, is that this exception applies only to the cases covered by the general rule, or to the cases that otherwise would be included in the general rule. This would accomplish the probable object of the amendment, and would not lead to absurdities or inconsistencies, but would leave in full force the positive provisions of the other subdivisions. It should, therefore, I think, be said that the amendment of 1893 did not impair the force of subdivision 3. These views lead to the conclusion that the justice had jurisdiction, and that the judgment should therefore be affirmed.

Judgment affirmed, with costs.

Martin, J., concurs; Hardin, P. J., not voting.