Opinion
October 8, 1915.
M. Carl Levine, for the appellant.
Louis Pleshet, for the respondent.
The plaintiff, respondent, has recovered a judgment against the defendant, appellant, in the County Court of Kings county, for the sum of $2,000 and taxed costs. The complaint, original and as amended, states two causes of action, one for wages alleged to have been earned by the plaintiff, and another for damages for a breach of a written contract of employment. The demand for judgment is "for the sum of two thousand dollars upon both causes of action, with interest, besides the costs and disbursements of the action." The case was tried before the County Court without a jury, and the findings of the court are to the effect that the defendant was indebted to the plaintiff in the sum of $7.25 for compensation actually earned, and that, by an unlawful breach by defendant of the contract between the parties, plaintiff suffered damages "in the sum of, at least, two thousand ($2,000) dollars." Judgment was directed against the defendant in the sum of $2,000, besides the costs and disbursements of the action. From this judgment the defendant appeals.
Among the grounds urged by the appellant for reversal of the judgment is one that the County Court was without jurisdiction of the action. If this contention be sound, it will be unnecessary to consider the other points of attack.
Section 14 of article 6 of the Constitution, and subdivision 3 of section 340 of the Code of Civil Procedure limit the jurisdiction of County Courts to actions "in which the complaint demands judgment for a sum not exceeding two thousand dollars." In this case the summons makes no demand for a specific sum, and is for relief only. But as the complaint was served together with the summons, the case does not fall within the rule declared in Van Clief v. Van Vechten ( 130 N.Y. 571), where it was held that when an action had been begun in a County Court by the service of a summons for relief only, the court may permit an amendment of a complaint, subsequently served, to restrict the demand for judgment to the sum of $2,000. There is no contention here that the summons was served without a complaint. It seems to be conceded that both papers were served together, and in this event the court acquired jurisdiction, if at all, only upon a demand in the complaint for judgment for a sum not exceeding $2,000. The Constitution has made the demand for judgment the test of jurisdiction. ( Heffron v. Jennings, 66 App. Div. 443; Howard Iron Works v. Buffalo Elevating Co., 176 N.Y. 1.) The respondent contends that the demand for judgment in his complaint is not for a sum exceeding $2,000. He argues that while he demanded $2,000, with interest, upon both causes of action set forth in his complaint, the word "with" should be interpreted as meaning "including," so that the demand should be considered as for the sum of $2,000, including interest. Such is not the natural and ordinary meaning of the language used in the complaint. The first cause of action stated therein is for a fixed sum, to which, if recovered, interest attached as a part of the demand. The second cause of action is for $2,000 as unliquidated damages, to which interest would not attach at common law; but the test of jurisdiction is not the sum recoverable in the action, but the sum demanded in the complaint.
Nor, as we are of opinion, did the election by the plaintiff not to take judgment for a sum exceeding $2,000 confer jurisdiction upon the County Court. This court has held quite recently ( National Surety Co. v. Rosenberg, 158 App. Div. 896) that where a complaint, served together with the summons, in an action in a County Court, demanded the sum of $2,000 and interest, the court acquired no jurisdiction whatever, and could not make an order permitting the plaintiff to amend the demand as set forth in the complaint. It is true that in the case just referred to the cause of action was for liquidated damages, and that in the case before us the two causes of action are separately for liquidated and unliquidated damages; but that is not sufficient to take this case out of the rule. In Hamburger v. Hellman ( 103 App. Div. 263), relied upon by the respondent, the action was in the Municipal Court of the City of New York, as to the jurisdiction of which, in actions to recover a sum of money, there was no plain constitutional restriction. There the damages demanded were wholly unliquidated; and although the complaint demanded interest on the damages, the court was of opinion that the demand for interest could be ignored or waived to support jurisdiction obtained by regular service of a summons. That decision was based expressly upon various provisions of the Municipal Court Act, read together, and has no necessary application to the question now before us.
We think that the County Court of Kings county, by reason of the demand for judgment in the complaint, did not have jurisdiction of this action. This being so, the fact that this point was not raised at any stage before judgment does not estop the appellant from raising it now. ( Robinson v. Oceanic Steam Navigation Co., 112 N.Y. 315; Matter of Walker, 136 id. 29; Matter of Logan, 116 App. Div. 147.)
The judgment of the County Court of Kings county must be reversed and the complaint dismissed, with costs and disbursements.
JENKS, P.J., STAPLETON, MILLS and RICH, JJ., concurred.
Judgment of the County Court of Kings county reversed and complaint dismissed, with costs and disbursements.