DOWLING, J.:

This appeal is taken from an order of Special Term directing that an alternative writ of prohibition issue commanding the defendants to desist and refrain from any further proceedings on the motion to dismiss the complaint in the action brought by Annie Nassoit against Walter K. Hirschbach now pending in the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, for the reason that the same was not brought in the proper district, and from taking any proceedings on said motion until the further direction of this court at Special Term, and ordering said defendants to show cause at said Special Term why they should not be absolutely restrained from any further proceedings on the motion made by the defendant to dismiss the complaint in the said action.

Annie Nassoit brought an action against Walter K. Hirschbach in the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, to recover rent due on December 1, 1920, amounting to the sum of fifty-five dollars. Said Annie Nassoit is a resident of the said fifth district. Under the New York City Municipal Court Code (Laws of 1915, chap. 279, § 17) it is provided that "An action must be brought in a district in which either the plaintiff or defendant or one of the plaintiffs or one of the defendants resides, unless all the plaintiffs or all the defendants reside out of the city of New York, in which case the action may be brought in any district." Annie Nassoit properly brought her action in the fifth district pursuant to the provisions of this section of the Municipal Court Code. It appears, however, that the justices of the Municipal Court of the City of New York have adopted a rule as follows:

"Rule 35. All actions for rent or for the rental value of the use or occupation of premises used for dwelling purposes and all actions for damages alleged to have been sustained through the holding over of the occupant of such premises after the expiration of his term shall be brought in the district within which the premises are situated. Whenever a failure to comply with this rule shall appear, the court shall upon its own motion or upon motion of the defendant, dismiss the complaint, with costs, to be taxed by the clerk, unless the defendant by stipulation in writing to be filed with the clerk or in open court, consents that the action remain and be tried in the district wherein the same has been brought."

The property, to recover rent for which the action is brought, is situated in the seventh district, and the defendant Hirschbach made affidavit setting forth said fact and asking that the action for rent be dismissed, with costs, or that the same be removed to the seventh district court and that plaintiff pay the costs of the application. One of the attorneys for Annie Nassoit made affidavit setting forth that the justice presiding at Trial Term, Part 1 of the Municipal Court, Fifth District, would grant the motion and dismiss the complaint, as had been done by the other justices of the said Municipal Court in every instance where it was made to appear that the action was brought in a district other than that prescribed by said rule, they in each case having dismissed the complaint, with costs.

I am of the opinion that the justices of the Municipal Court of the City of New York were without power to make rule 35, which is in direct contravention of the legislative mandate contained in section 17 of the Municipal Court Code. The power given to the Municipal Court justices under section 8 of the Municipal Court Code to adopt and amend rules, subject to the approval of the presiding justices of the Appellate Divisions of the Supreme Court for the first and second departments, or of the justices presiding therein, does not authorize them to establish a rule which is in violation of the legislative act. The power to designate a part of the court where special classes of cases shall be brought or tried applies only to the establishment of parts of the court in each district and does not authorize the justices to abrogate the provisions of the Municipal Court Code and to require the bringing of a certain class of actions in a district other than that in which the said Code provides that an action must be brought. My conclusion is that rule 35, as adopted by the justices of the Municipal Court, is without force or effect and is invalid, as being in direct contravention of the legislative provision.

I am of the opinion, however, as well that the writ of prohibition is not the proper remedy in this case, but that if the Municipal Court justice should grant the motion to dismiss, the proper remedy is by appeal. The writ of prohibition against a court or other tribunal possessing judicial powers can only issue where it is without jurisdiction or is proceeding or threatening to proceed in excess of its jurisdiction. ( People ex rel. Newton v. Special Term, Part 1, 193 App. Div. 463.) In this case the court had jurisdiction of the parties and while its threatened action, if effectuated, would have been erroneous, it was not in excess of its jurisdiction but an error which was the subject of appeal. Although the appellants express their desire, in their brief, to waive any irregularity of practice in order to secure an expression of this court's opinion on the merits, the question of the power to issue the writ is one which cannot be waived and the court must, therefore, reverse the order upon that ground.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion for an alternative writ of prohibition is denied, without costs.

CLARKE, P.J., LAUGHLIN and PAGE, JJ., concur; GREENBAUM, J., dissents.