Cahill v. Wissner

Clark, J. As to all questions raised by the appellant the members of this court are in accord, except upon a single point, which requires the consideration of two questions: First, whether the Municipal Court [314] was without jurisdiction to entertain the instant action because the Municipal Court Code is declared not to be retroactive and, second, whether, in a prior action in the Municipal Court between plaintiff’s assignor and the defendant, the dismissal of the complaint in that action rendered the controversy between the plaintiff and the defendant res adjudicata, or, in other words, conferred upon the defendant through the judgment of dismissal, a substantial property right which was beyond legislative interference. In the language of counsel for the defendant, contained in his affidavit verified February 11, 1915, in an action in the County Court of Kings county, made part of the record herein, the dismissal in the prior action is explained in the following language: “ The second action was dismissed after trial because of the fact that the Appellate Division of this department had very recently decided that the Municipal Court had no jurisdiction of an action of' this nature.” See Seabott v. Wanamaker, 164 App. Div. 531. Thus the dismissal of the complaint in the prior action in the Municipal Court was directed, not upon the merits, but for lack of jurisdiction. Although undoubtedly bound by the litigation instituted by her assignor, the plaintiff, as well as her assignor, is, therefore, free of an adjudication on the merits in the prior action in the Municipal Court. It is, however, claimed that the judgment in that action became an inviolable property right, immune to legislative action. That a judgment may attain such immunity is clearly shown in the following cases: Burch v. Newbury, 10 N. Y. 374; Gilman v. Tucker, 128 id. 190; Germania Savings Bank v. Suspension Bridge, 159 id. 362; Livingston v. Livingston, 173 id. 377; Matter of Greene, 55 App. Div. 475. The principle to be extracted from the cases above cited seems [315] to be that legislative interference ends only where all rights and equities between the litigants have been heard and finally determined. Without analyzing all the cases cited above, reference may be had, by way of illustration, to the opinion of Huger, Ch. J., in the Gilman Case, supra, where (at p. 204) he says: ‘1 After adjudication the fruits of the judgment become rights of property.” The language quoted can be properly understood only after reading, on page 203 of the same case, that the judgment in question was “ a final and unimpeachable judgment, not only establishing the plaintiff’s right to the premises in dispute, but also awarding him a sum of money as costs.” Turning to the Livingston Case, supra, in which (at p. 382) Gray, J., cites from the Gilman Case, supra, one reads that a statute is unconstitutional in so far as it confers a power upon the court to annul or vary “ valid and final judgments rendered before the enactment of the statute.” In the light of the principle enunciated in the two cases last cited can it be successfully maintained that the prior judgment of dismissal in the Municipal Court was either a final and unimpeachable judgment establishing the plaintiff’s right, or a final and valid judgment? A majority of this court is of opinion that the prohibition in section 181 of the Municipal Court Code against the retroactive effect of that Code is, in the instant case, to be construed as affecting substantive rights and not rights that are purely remedial. In the Municipal Court action the plaintiff, after dismissal of the action of her assignor in that court, could undoubtedly have taken her case into a court of competent jurisdiction. Instead of so doing, she postponed action until, by the enactment of the Municipal Court Code, she became entitled to seek her remedy in the Municipal Court. Thereupon she brought such [316] action in the Municipal Court and, from the judgment in her favor there recovered upon the merits, the instant appeal was taken. The act creating the Municipal Court Code neither increased nor diminished plaintiff’s substantive rights. It simply gave her a new court, in addition to then existing courts, in which to assert her substantive rights. The new act may be regarded not as having continued the powers of an existing court but, for the purpose of this appeal, as having established a court theretofore non-existent, which the plaintiff became qualified to enter. If the plaintiff was not entitled to maintain her action, then the owner of a dishonored note for $750, which matured August 81, 1915, is barred from suing upon the note in the Municipal Court after the 1st day of September, 1915, when the Municipal Court Code took effect. The judgment should be affirmed. Jaycox, J., concurs.