Dammann v. Peterson, 17 Misc. 369

17 Misc. 369 | N.Y. App. Term. | 1896

Per Curiam.

The action was against thé defendant as the maker of a promissory note. The defendant demurred upon the ground that the complaint did" not state facts sufficient to constitute a cause of action, and in his argument before the justice avowed as his sole cause of demurrer the omission of the plaintiff to allege in his complaint that one or both of the parties litigant resided within the territory comprising the sixth judicial district, the area of the court’s jurisdiction. It was claimed that the rule •applicable to inferior courts requires that, the facts necessary to confer jurisdiction must be alleged, and Frees v. Ford, 6 N. Y. 176; Gilbert v. York, 111 id. 544; Bunker v. Langs, 76 Hun, 543; Peck v. Dickey, 5 Misc. Rep. 96, are cited to sustain the contention. These cases" relate to the jurisdiction of the county courts, which in ordinary actions is limited to ca'ses wherein the defendant or two or more defendants are residents of the county at the time of the commencement of the action (Judiciary Act, L. 1847, ch. 280, § 30; Code of Civ. Pro., § 340, subd. 3), and depend upon the peculiar construction of these statutes.

There is no such limitation upon the jurisdiction of the District Courts, which is made to depend solely upon the character of the cause of action. Code, § 3215; Consol. Act. of 1882, § 1285. True, the statute prescribes with particularity the district in which the action shall be brought (Consol. Act, § 1289), and the conse-. quences of failure to comply with the statute in this respect are stated in section 1382 of the same act, as follows: “ Judgment that the action be dismissed, with costs, without prejudice to a new action, shall be rendered in the following cases: * * * (3.) When it is objected at the trial, and appears by the evidence that the action is brought in the wrong district * * * or that the court has not jurisdiction; but if the objection be taken and overruled, it is cause only for reversal on appeal, and does not otherwise invalidate the judgment; if not taken at the' trial it is waived, and the court will be deemed to have jurisdiction.” The defendant did not object upon the trial, nor did he prove or offer to prove by evidence that the action was brought in the wrong district. Hence the objection was waived, and the court.deemed to have jurisdiction.. Such is the language of the special statute" relating to District Courts, and the cases relied upon, construing the special statutes relating to County Courts, have no relevancy to the question involved. As the County Courts in the cases cited depended upon the residence of the defendants for their jurisdiction, the plaintiffs therein were obliged to allege, and if denied prove, the jurisdictional facts, and that is all those cases, decide. Whereas in an action brought in the District Courts the plaintiff is not re"quired to allege Or prove the residence of either or all of the parties within the judical district, and the defendant, in order to raise the point, is required not only to object upon the trial that the action is •brought in the wrong district; but to make the fact appear by the 'evidence.

" The demurrer interposed was, therefore, unauthorized; it presented no valid plea to the jurisdiction.; and the complaint being verified, and the defendant having been- duly served with the summons, the justice properly awarded judgment in favor of the plaintiff for the amount claimed. Consol. Act, § 1383.

It follows that the judgment must be affirmed, with costs.

Present: Daly, P. J., McAdam and Bischoff, JJ.

J udgment affirmed, with costs.