#### Morrison & Manning *vs.*Shelley.

Suits cannot be commenced *in the mayor's courts*of the cities of this state by the filing and service of a declaration against *non-residents*of the county in which the courts are held.

Error from the Troy mayor’s court. Shelley commenced a suit in the mayor’s court of the city of Troy against Morrison and Manning, by the filing and service of a declaration in November, 1838. The defendants pleaded to *the jurisdiction of the court,*alleging that they were *non residents*of the city of Troy, in the county of Rensselaer. The plaintiff *replied*that the- defendants were *in*the city of Troy, *in [ *408 ] the county of Rensselaer, at the time of the filing and service of • the declaration. To this replication, the defendants demurred, and the mayor’s court adjudged the replication good and rendered judgment for the plaintiff. The defendants sued out a writ of error. The cause was submitted on written arguments by

G. *W. Wright,*for the plaintiffs in error.

*A. K. Hadley,*for the defendant in error.

*By the Court,*

Nelson, C. J.

The question is whether a suit can be *312maintained against *a non-residmt defendant*in the court below, commenced by the filing and service of a declaration ?

By 2 *R. S.*149, § 19, *2d. ed.*the' mayor, recorder and aldermen of Troy, &c. have power to hold a court of common pleas, to be called, “ The Mayor’s Court of the City of Troy,” and by § 20, the said court have power “ to hear, try, and determine, according to law, all local actions arising within the city of Troy, and also all transitory actions, although the same may not have arisen therein.”

The statute, allowing suits to be commenced by the filing and service of a declaration, in terms confined the proceeding to the supreme court, and to the *common pleas of the county in which the defendant resided.*2 *R. S.*269, § 1. It was doubtful, therefore, whether mayor’s courts of the cities were embraced within the provision, though they had authority to hold courts of common pleas : *that*not being their title; to remedy which, the following section was enacted: “ All the provisions of the first Title of Chapter six, of the third Part of the Revised Statutes, 2 *R. S.*269, relating to the commencement of suits, shall hereafter apply to the commencement of suits in the mayor’s courts of the several cities of this state ; and that actions in said mayor’s courts may be commenced *in the same manner as in the supreme*court, *and courts of common*pleas.” *Statutes of*1833, *p.*20, § 5. The phraseology is not very fortunate to express what is obviously the meaning intended by the legislature, namely: that suits might be commenced in these courts, in the same *manner [ *409 ] as in the courts of common pleas. It comes to this, because the limitation as to residence in the case of the common pleas necessarily applies, being subject to the manner of commencing in those courts as well as in the supreme court. If it had been designed to put them on a footing with the latter court in this respect, why include the common pleas at all ?

I have a strong impression we have already decided the question in conformity with the above case, on a case that came up from the mayor’s court of the city of Albany.

The counsel for the plaintiff below supposes that the power is unlimited, because there is no express restrictive clause, as in the case of the superior court of the city of New-York and the mayor’s court of Rochester. *Statutes of*1830 p. 18, § 1, *and Statutes of*1834, *p.*333, § 1. But upon our view of the act of 1833, the restriction is equally explicit and conclusive.

Judgment reversed.