Misc.] Appellate Term, Second Department, December, 1917. Supreme Court in this class of proceedings is statutory, or that the provisions or the Codes relative to examinations of adverse parties before trial conferred any new jurisdiction upon the Supreme Court. Rather I think they were regulative of an inherent jurisdiction already existing. It is not necessary to hold, however, that at the time of the adoption of the Constitution of 1894 the jurisdiction of an application for the examination of a party before trial was an equitable jurisdiction. As has already been shown, the Code of Procedure made this proceeding available indiscriminately in equity and common-law actions, and extended it to other courts besides the Supreme Court including those which had either a limited equitable jurisdiction or none at all. The statutory provisions allowing it were in the Code of Civil Procedure commingled with others relating to taking the depositions of witnesses not parties, to perpetuating testimony, etc. The proceeding thus became an interlocutory proceeding available in every sort of action and within the jurisdiction of all courts of record. Long prior to the Constitution of 1894, it had entirely lost its peculiar character as an equitable remedy. Section 18 of article VI of the Constitution of 1894, so far as material, reads as follows: "Inferior local courts of civil and criminal jurisdiction may be established by the Legislature, but no inferior local court hereafter created shall be a court of record. The Legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article." The provisions of section 18 forbidding the legislature to make inferior local courts thereafter created Appellate Term, Second Department, December, 1917. [Vol. 102. courts of record and limiting its powers to confer jurisdiction upon inferior or local courts of its own creation were new, there having been no corresponding provisions in any of the previous Constitutions. The reasons for the insertion of this provision were well expressed by Elihu Root, chairman of the judiciary committee of the Constitutional Convention of 1894, as quoted in the dissenting opinion of Mr. Justice Page in Lewkowicz v. Queen Aeroplane Co., 77 Misc. Rep. 151, 167, as follows: "We have done one other thing to which I beg to call your attention. That is this: there has been a constant process in this state of enlarging of the jurisdiction of local and inferior tribunals. That is the way in which we found ourselves confronting the situation with four Superior City Courts which had been gradually built up, one of them during two hundred years, the others during much shorter periods, by the constant addition of jurisdiction, until each one had equal jurisdiction with the Supreme Court within the locality in which it was situated. so, while we destroy, by consolidating all these tribunals which have grown to be equal in jurisdiction to the Supreme Court, and leave only one Supreme Court, we prohibit the legislature from ever enlarging the jurisdiction of local and inferior courts, so that they shall exceed, as to the courts now existing, the jurisdiction they now have, and as to any courts they may hereafter create, the jurisdiction of the County Courts. We thus keep down to the level of the County Courts, local tribunals and useful tribunals, adapted to the performance of specific functions, all courts except the one Supreme Court; and we do that, not alone for symmetry, not alone to avoid the inconveniences to which I have referred, of building up these rivals to the Supreme Court, but we do it because it gives effect to a principle, and this is the Misc.] Appellate Term, Second Department, December, 1917. principle. The proper trial of small causes is just as important as the trial of large causes. Small cases are just as important to those who have them as large causes to wealthier men When a court is organized for the trial of small causes it ought to attend to its business and try to do it just as well as any other court tries a million dollar cause. But if you enlarge the jurisdiction and give it million dollar causes to try, it will never attend to the little causes, and you will spoil your court for the trial of small causes, and merely add another court to those which try large ones. We propose by this inhibition upon the legislature to keep a system of courts in this state which will attend to the proper function of properly trying small causes in which the great body of people are more interested than they are in the large ones.' Revised Record, Const. Conv. of 1894, vol. 2, p. 901." The two prevailing opinions in that case did not receive the approval either of the Appellate Division or of the Court of Appeals. 154 App. Div. 142; 207 N. Y. 290. The Appellate Division, in a unanimous opinion of that court, read by Mr. Justice Clarke, also quoted the foregoing remarks of Mr. Root. There is nothing inconsistent with the purpose of section 18 of article VI of the Constitution of 1894, as thus explained, in holding that the Municipal Court might be invested with power to entertain an application for the examination before trial of a party to a cause of which that court has jurisdiction. In view of the long use of such procedure in both common-law and equity actions, both in courts having equity jurisdiction and courts not having it, there is no reason to suppose that the framers of the Constitution of 1894 intended to forbid the legislature to confer upon inferior courts the right to exercise such power as auxiliary to their general jurisdiction. I think the Appellate Term, Second Department, December, 1917. [Vol. 102. term 66 any equity jurisdiction" as used in section 18 aforesaid must be construed to mean jurisdiction of proceedings and remedies which were recognized at the time of the adoption of the Constitution of 1894 as distinctly equitable in their nature, which, as already shown, was not the case with the interlocutory and auxiliary proceeding for the examination of a party before trial at that time. For these reasons chapter 610 of the Laws of 1916 does not in my opinion attempt to confer upon the Municipal Court any equity jurisdiction and therefore is not in conflict with the provisions of section 18 of article VI of the Constitution. In view of these considerations, it is evident that the order appealed from was right; and, had it been an appealable order, it would be affirmed; but, since it is not reviewable upon a separate appeal, we shall have to dismiss the appeal, with ten dollars costs. CLARK and CALLAGHAN, JJ., concur in result. BROAD AND MARKET NATIONAL BANK OF NEWARK, Respondent, v. NEW YORK AND EASTERN REALTY COMPANY, Appellant, Impleaded with BENJAMIN SICKLICK, Defendant. (Supreme Court, Appellate Term, Second Department, December, 1917.) Negotiable instruments-action on promissory note-corporations — bills, notes and checks - plaintiff not entitled to recover upon original or renewal note appeal. A corporation made its promissory note for $750 to the order of its president which he indorsed as an individual and discounted at the plaintiff bank where he had a personal account, Misc.] Appellate Term, Second Department, December, 1917. and at maturity of the note he gave plaintiff his personal check for $50 together with a similar note for $700 made by the corporation and indorsed by him, the first note being thereupon surrendered after being stamped "paid" by plaintiff. The $700 note at maturity was stamped "paid" and surrendered by plaintiff which in place of it received a third note of similar tenor for $700 and when it matured the payee gave his personal check for $700 drawn to plaintiff's order and its president, who authorized the acceptance thereof in payment of said note which was thereupon stamped "paid" and surrendered to plaintiff, charged the $700 check which was stamped "paid" against the account of the drawer deducting the amount thereof from his account on the books of the bank. In an action on the original note, in which it was sought to hold the maker liable, the plaintiff contended that the $700 check though charged against the drawer's account was never paid because a certain check for $925 deposited in his personal account three days before the maturity of the note was never collected and was, therefore, erroneously credited to his account, and that plaintiff erred in accepting the same in payment for and surrendering the third note and in charging the payee's personal account with the check for $700 and marking it "paid." Held, that such contention was untenable, that plaintiff was not entitled to recover upon the original note nor upon either of the two renewal notes; that its remedy was solely against its depositor upon the unpaid $700 check. APPEAL by defendant New York and Eastern Realty Company from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, third district, rendered May 5, 1917, in favor of plaintiff for $767.32, after a trial by the court without a jury. Alexander Kahn, for appellant. Herbert H. Gibbs and Arthur J. Carleton, for respondent. BENEDICT, J. The defendant the New York and Eastern Realty Company appeals from a judgment |
