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Appellate Term, First Department, April, 1921. [Vol. 115.

The Code of Civil Procedure adopted in 1849, in which the laws relating to Justices Courts in the city of New York were incorporated, provided in section 468 that “ all statutory provisions inconsistent with this act, are repealed.” However, Collins v. Underwood, 1 E. D. Smith, 318, decided in 1852, held that the provisions of the Code had not repealed the prohibitory act depriving the District or Justices Courts of jurisdiction in actions brought for the recovery of seamen's wages.

By chapter 741, section 4, Laws of 1870, the Code was amended in reference to jurisdiction of District Courts as follows: “Section 66 of the said Code is hereby amended so as to read as follows: The district courts of the City of New York shall have such jurisdiction as is provided by special statutes."

Turning to the Laws of 1882, chapter 410, which was “An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York,” we find under section 1284 that District or Justices Courts in the city of New York shall“ have such jurisdiction in civil actions and special proceedings as is specially conferred upon them by statute, and no other." Section 1285 gives such courts the jurisdiction therein prescribed : “ Except as otherwise provided in the next section.”

The next section, viz., 1286, excludes jurisdiction in certain cases, and among them the cases named in subdivision 4, which reads as follows: “ Where the action is brought by any seaman or mariner, or other person belonging to any ship or vessel against the owner or owners, master or commander of any such ship or vessel, for or by reason of the non-performance or breach of any agreement or contract made by such seaman or mariner, or other person, with the said owner or owners, master or commander, for services,

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Appellate Term, First Department, April, 1921.

or compensation for service, on board of any ship or vessel, during any voyage performed, or in part performed, by such ship or vessel.”

Section 2143 provides:

66 Sections * * * [enumerating various sections] twelve hundred and eighty-six, except subdivisions four and five * * * of this act being intended only to contain the substance of certain sections of the Code of Civil Procedure * * *, shall not be construed as making any new enactment, or as repealing, modifying, amending or superseding any provision of * * * said Code but shall be treated and considered as embraced in this act solely in order that it may contain all provisions of existing laws which are of special application in the city of New York."

It is clear from the marginal note to the official edition of the Laws of 1882 that the source of section 1286 was section 2863 of the Code with the exception of subdivision 4, whose source is stated to be section 2, chapter 71 of the Laws of 1819.

At this point it is essential to ascertain the effect of the Consolidation Act of 1882, chapter 410. In view of the title to the act, was there a repeal by implication of chapter 71 of the Laws of 1819? Do the provisions of section 2143 change the ordinary rule in reference to repeal by implication. The same questions were raised in Matter of New York Institution for Instruction of the Deaf and Dumb, 121 N. Y. 234. In that case the question was whether section 8 of the act of 1865, relating to acquiring land, levying assessments, etc., for the laying out of Central Park, was repealed by the same Consolidation Act we are now discussing. In that case the court said: “ We have not, therefore, a case where some prior statute has been wholly omitted and no provision of any kind substiAppellate Term, First Department, April, 1921. [Vol. 115.

tuted in its place. But this is a case where the prior provision of law has been entirely dropped, and provisions upon the same subject are found in the new act. Under such circumstances how is the Consolidation Act to be construed? It was the manifest intention of the legislature that it should take the place of the numerous special and local acts applicable to the city of New York, which had been enacted for more than a century, and to rescue them from the obscurity, uncertainty and difficulty caused by their scattered condition; and that intention should have effect. * * * We have, therefore, reached the conclusion that section 8 of the act of 1865, although not specially repealed was superseded by the Consolidation Act, and that the order of the General Term should, therefore, be affirmed with costs.” .

In the case just cited, the provisions of the omitted section were covered by other legislation in the new enactment which did not follow the omitted provisions. For this reason the Court of Appeals held that the former act was superseded. In the case at bar, the provisions of the old act (Laws of 1819, chap. 71) were incorporated in the new act by the use of almost the identical language, and, in addition, the effect of such provisions was extended so as to cover not only actions for seamen's wages, but also any action for services brought against an owner or master of a vessel, providing such services were rendered during any voyage of such vessel. Thus the new act is somewhat broader than the old. Section 2143 seems to have been incorporated in the new act for the purpose of protecting Code sections and certain other laws, therein enumerated, against repeal by implication, stating that they were incorporated therein for the sake of embracing all provisions affecting the city of New York in one act. It is significant that subdiviMisc.)

Appellate Term, First Department, April, 1921.

sion 4 of section 1286 was expressly excepted from the operation of the provisions of section 2143. The legislators knew the source of this subdivision, and yet did not state that section 2 of chapter 71 of the Laws of 1819 was not to be deemed to be repealed or superseded by the new act, which enlarged the scope of the original act. It is a fair inference that they thus intended that the old act should be superseded, and that they contemplated that the consolidation should repeal or supersede some prior enactments is obvious from the language used in section 2143.

Chapter 580 of the Laws of 1902 is the Municipal Court Act. Section 1 states the jurisdiction, which is wide enough to include the plaintiff's claim in the present case. Section 364 repeals “ the laws or parts thereof, specified in the schedule hereto annexed.” Then comes the “ schedule of laws repealed,” with a list of laws and sections in which appears at page 1596 (Laws of 1902, vol. 2) the following: "1286. * * * No jurisdiction in certain cases."

Thus by a double identification we have the provision in question done away. We find section 2, chapter 71 of the Laws of 1819, was supersoded by the Consolidation Act (Laws of 1882, chap. 410, § 1286, subd. 4), and that section 1286 of chapter 410 of the Laws of 1882 was repealed by chapter 580 of the Laws of 1902, and that the right of the plaintiff in this action to sue in the Municipal Court is conferred by the Municipal Court Act. The present Municipal Court Code (Laws of 1915, chap. 279) states the jurisdiction, which is wide enough to include this plaintiff's claim, and contains no provision denying jurisdiction to the Munici. pal Court in the present case.

In passing, it may be said that Roche v. McCaldin, supra, relied on by the court below, was decided while section 1286 of the Laws of 1882 was in effect, namely,

Appellate Term, First Department, March, 1921. [Vol. 115.

in 1892, and thus before the repeal of 1902, and hence the question here presented was not before that court.

The court below, therefore, erred in dismissing the plaintiff's complaint as to defendant Sigsbee, Humphrey & Co., Inc., on the ground that the Municipal Court had no jurisdiction of the action, and also in dismissing the complaint as to the defendant Shipping Board. Ingersoll-Rand Co. v. United States Shipping Board Emergency Fleet Corporation, 195 App. Div. 838.

Judgment and order reversed, with ten dollars costs, and motion denied with leave to defendants to serve answers within five days after service of copy of order to be entered hereon, upon payment of said costs.

Guy and WAGNER, JJ., concur.

Judgment and order reversed, with ten dollars costs.

rever

THE A. N. P. REALTY COMPANY, Inc., Landlord, Appel

lant, v. Louis TUNICK, etc., Tenant, Respondent.

(Supreme Court, Appellate Term, First Department, February

Term — filed March, 1921.)

Summary proceedings — monthly tenancy — when pleading of

notice unnecessary - Laws of 1882, chap. 203, as amended by Laws of 1920, chap. 209.

A statute requiring a landlord to give notice of his intention to terminate a tenancy has no application where the tenancy is terminated by the act of the tenant.

Where a petition in summary proceedings against a monthly tenant holding over without the permission of his landlord alleges that the tenant, about the end of a certain month, notified petitioner that he would quit and surrender the premises, located in the city of New York, on the first day of the succeeding month, the dismissal of the petition for failure to allege

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