#### The People of the State of New York ex rel. Allen W. Evarts and Others, Appellants, *v.*The Municipal Court of the City of New York, Borough of Manhattan, Ninth District, and Edgar J. Lauer and Aaron J. Levy, Justices of Said Municipal Court, etc., Defendants, Impleaded with Emily Watts, etc., Respondent. The People of the State of New York ex rel. Allen W. Evarts and Others, Appellants, *v.*The Municipal Court of the City of New York, Borough of Manhattan, Ninth District, and Edgar J. Lauer and Aaron J. Levy, Justices of Said Municipal Court, etc., Defendants, Impleaded with James R. Watts, etc., Respondent.

First Department,

May 15, 1914.

Writ of prohibition—tribunal must be acting in excess of jurisdiction — Municipal Court, city of Hew York — reduction of amount of claim to confer jurisdiction — equitable defenses.

A writ of prohibition can only issue where the tribunal sought to be prohibited is acting without or in excess of its jurisdiction.

Although the Municipal Court of the city of New York has no jurisdiction of an action at law where the sum claimed exceeds $500, exclusive of *478costs and interest, a party having a claim in excess of that amount may remit the excess so as to give the court jurisdiction to give judgment for the balance. In such case there can be no subsequent recovery for the excess, for the judgment becomes *res adjudioata*as to the amount due.

The jurisdiction of the Municipal Court of the city of New York must be determined by the complaint, and it is not ousted of jurisdiction because the defendant may have equitable defenses. This because, although said court may not grant equitable relief or entertain an equitable counterclaim as such, it may consider an equitable defense to the extent of refusing affirmative judgment to the plaintiff.

Appeals in both cases by the relators, Allen W. Evarts and others, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1914, as resettled by two other orders entered in said clerk’s office on the 17th day of April, 1914, which orders denied the relators’ applications for absolute writs of prohibition to the Municipal Court and dismissed alternative writs heretofore issued.

*Charles Strauss,*for the appellants.

*Herbert G. McLear,*for the respondents.

Scott, J.:

In these cases the relators, the surviving members of a well-known and universally respected firm of attorneys, long since dissolved by the death of some of its members, seek to restrain the Municipal Court from proceeding with the trial of two actions brought, one by a former client of the firm and one by the wife of said former client, claiming by assignment from him, and to that end ask that writs of prohibition issue. The claims upon which these actions are founded are certainly stale, one having accrued, as it is alleged, in 1890, and the other in 1888. Whether or not they are barred by any statute of limitation is not before us for decision.

The relators rest their demand for a writ of prohibition, as they must, upon the ground that the Municipal Court is without jurisdiction to proceed with the actions, for, as frankly conceded by relators, a writ of prohibition will not issue unless the tribunal sought to be prohibited is acting without or in excess of its jurisdiction. *(People ex rel. Mayor*v. *Nichols,*
      *47979 N. Y. 582; *Quimbo Appo*v. *People,*20 id. 531; *People ex rel. Metz*v. *Dayton,*120 App. Div. 814.)

As to one of the actions, it is objected that an action cannot be. prosecuted in the Municipal Court because the plaintiff asserts that the relators owe her $570, although in her action she demands only $500, with interest and costs. Counsel has cited to us many interesting cases in England in which it has been held to be in the nature of a fraud upon a court of superior jurisdiction to voluntarily reduce a claim so as to sue in a court of inferior jurisdiction. No such rule obtains with us at the present day. The jurisdiction of the Municipal Court is fixed by statute, and extends to actions at law “ where the sum claimed does not exceed five hundred dollars, exclusive of interest and costs.” (Mun. Ct. Act [Laws of 1902, chap. 580], § 1, subd. 1, as amd. by Laws of 1905, chap. 513.) The “ sum claimed ” undoubtedly refers to the sum sought to be recovered in the action. *(Hamburger*v. *Hellman,*103 App. Div. 263.) That a party to whom is found due more than the sum which the Municipal Court has jurisdiction to award may remit the excess is expressly provided by section 250 of the Municipal Court Act, and we have no doubt that a party whose claim exceeds $500 may remit the excess and sue only for so much as the court has jurisdiction to deal with, the balance of course being lost to him forever because the judgment would be *res .adjudicata*as to the amount due upon the claims.

It is further objected that the defendants have equitable defenses to the claims which will be lost to them if the actions be prosecuted in the Municipal Court. If this he true, still it does not oust the Municipal Court of jurisdiction which must be determined by the complaint. There are cases, no doubt, in which a court of equity which has taken cognizance of a controversy will enjoin an action at law until the equitable suit has been determined, but that is not the case we have here. As to whether the relators’ proposed equitable defense would he wholly unavailing in the Municipal Court we are not now called upon to decide. There is authority, however, for the proposition that while the Municipal Court may not grant equitable relief or entertain an equitable counterclaim as such, it may consider and enforce an equitable defense to the extent *480of refusing an affirmative judgment to the plaintiff. *(Electrical Audit & R. Co.*v. *Greenberg,*56 Misc. Rep. 514.) It may be that their client’s long apparent acquiescence in relators’ retention of the small sums for which he now sues has misled them into failure to take steps to assert their liens in due season. If so it is certainly unfortunate, but does not justify the relief sought in this application.

The orders appealed from must each be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarke, Dowling and Hotohiciss, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements.