SUPREME COURT.

#### The People *ex rel.*Adolph Louenbein agt. Charles Donohue, Justice, &c.

*Jurisdiction—Ma/rine*court— *Sitwell act.*

The marine court of the city of New York is a court of record, to and for all intents and purposes, and has jurisdiction of all the proceedings authorized by the act to abolish imprisonment for debt, passed in 1831, commonly called the Stilwell act

*General*Term, *First*Department,

October, 1878.

Proceedings under the non-imprisonment act were commenced in the marine court of the city of LTew York against Marks H. Julian as a fraudulent debtor. After an examination and hearing Mr. justice Mo Ad am found him guilty and committed him to jail according to the provisions of the act. Julian, who was arrested under this commitment, sued out a writ of *habeas corpus*and *certiora/ri*from the ISTew York supreme court, under which he was discharged from custody, by Mr. justice Donohue, upon the ground that the marine court had no jurisdiction of Stilwell act proceedings. From this order the relator removed the matter to the general term upon *certiorari*and appeal.

*Adolph*Ozaki, attorney for relator.

*B. M.*Ehrlich, attorney for respondent.

Potter, *J.*

This is a *certiora/ri*to the respondent to review his decision discharging Marks H. Julian upon a writ of *habeas corpus*from imprisonment under a commitment made by one *153of the justices of the marine court pursuant to the provisions of the act to abolish imprisonment for debt.

The relator, doubting whether a *certiorari*was the appropriate remedy, also brought an appeal under section 1356, Code of Civil Procedure.

The respondent objected that the writ of *certiorari*was improper because there was a remedy cby appeal, and that the appeal was premature and unauthorized because the order appealed from had not been entered with the clerk of this court. The allowance of the writ of *certíorari*was discretionary, and while the general rule is, as claimed by the people’s counsel, -that the writ will not, in the exercise of judicial discretion, ordinarily be granted where there is a remedy by appeal, yet its allowance is not absolutely inhibited in such a case.

In regard to the objection that the appeal was taken before the entry of the order appealed from, it is sufficient to say there is no proof before the court that the order was not in fact entered. The question involved is one of considerable practical importance, and it is, therefore, desirable that a decision of it be had without delay on account of technical objections.

The question is, whether a justice of the marine court has power to issue a warrant for the arrest and commitment of a party in virtuq of proceedings under the act to abolish imprisonment for debt, &e., passed April 26, 1831, and the acts amendatory of the same.

By section 3 of the non-imprisonment act the plaintiff may, in any action or upon any judgment obtained in a court of record, apply to any judge of that court for a warrant to arrest the defendant for the causes specified in section 4 of that act.

Is the marine court of the city of Mew York a court of record?

We find, by reference to the statute (2 *R. Laws,*361, *sec.*106), that such -court is declared to be a court of record. It is to be presumed that the legislature intended to convey the *154same meaning in the use of the expression “ court of record ” in the statute of 1831 as in the statute of 1813.

But if we trace the history of the various statutes in relation to the marine court, or consider the jurisdiction it has at all times exercised in common-law actions from its organization to the'present time with its appointments, officers and its various proceedings, it will impress every legal mind that it is a court, of record.

It has and has had a clerk and a seal. It possessed the power to naturalize citizens until jurisdiction over that subject was taken from it by an act of the legislature passed as far back as 1852.

It has jurisdiction to entertain supplemental proceedings upon its own judgments in the same manner as courts of record *(In the Matter of Lippun,*48 *How. Practice R.,*359).

By an act passed April 14, 1865, the legislature provided for references, voluntary and involuntary, of actions pending in that court and prescribed the mode of reviewing and entering judgments upon the report of the referee, and, in brief, conferred upon this court all the powers possessed by any common-law court of record in relation to references, costs and extra allowances. It has appellate jurisdiction to review a judgment rendered by one of its justices.

The legislature, in 1874 *(chap.*545), authorized the judges of any court of record in Hew York city to send any action pending therein to the marine court. It is true that act, by a divided court, was held unconstitutional, not because the marine court had not jurisdiction, but because no court can divest itself of the duty of entertaining. cases that parties choose to bring in that court *(Alexander*agt. Bennett, 60 N. *Y.,*204).

In 1872 the legislature passed an act *(chap.*629) declaring it to be a court of record and using this significant language, to wit: “to and for all intents and purposes,” greatly increasing its jurisdiction and providing that the forms of process and proceedings prescribed by the Code of Procedure in *155respect to the other courts of record should apply to this court.

In 1875 the legislature, by chapter 479 of the Laws of that year, clearly recognized this court as having jurisdiction under the act of 1831, the non-imprisonment act.

It provided, in section 2, that no person should be arrested in said marine court except as prescribed by that act, *but this provision shall not affect the act to aboUsh imprisonment for debt amd co punish fraudulent debtors,*passed April 24, 1831, or any act amending the same.

Its jurisdiction under the act of 1831 is again expressly recognized by the act itself.

Section 47 of said act provides that section 29 and the subsequent sections shall apply to this court. Section 29 contains the provision which enables a plaintiff to examine the defendant in relation to the fraudulent transactions specified in the act; and those examinations can only be had upon the arrest of the defendant upon a warrant issued by a judge of a court of record.

We next notice the declaration in the Code of Civil Procedure. Section 2 declares that the marine court of the city of Hew York is a court of record. This act professes to be a revising and not a creative act.

From these and similar enactments not deemed necessary to be specified we are brought to the conclusion that the marine court had jurisdiction of the respondent in the proceedings under the non-imprisonment act, and the order granting his discharge should be vacated and the respondent be subjected to the warrant of commitment and the further prosecution of the proceedings.

As the question involved is one of doubt and seems to have been disposed of by the court below with a view of having the same presented and decided by the general term and, perhaps, by the court of last resort, and as the costs are in the discretion of the court, we think no costs should be awarded

Ingalls, J., concurred.