5 Lans. 69 | N.Y. Sup. Ct. | 1871
Section 14 of article 6 of the Constitution of 1846, provided for the organization in each of the counties of the State, except the city and county of blew York^ of a County Court, which should have such jurisdiction in cases arising in Justices’ Court, and in special eases, as the legislature should prescribe, but said court should have no original civil jurisdiction except in such special cases.
Under the power thus conferred the legislature enacted in and by the thirtieth section of the judiciary act that the County Court should have jurisdiction to hear, try and determine the following actions when all the defendants at the time of commencement of the action, reside in the county in which said court is held, the actions were debt, assumpsit and covenant, when the debt did not exceed $2,000, &e., &c.
The Court of Appeals held, in Frees v. Ford, 2 Seld., 176, that a declaration in assumpsit in an action brought in the County Court that did not aver or show that the defendant was a resident of the county in which the suit was commenced was not sufficient to sustain a judgment in favor of the plaintiff.
This case is conclusive as to the insufficiency of the complaint in the ease before us, unless the necessity of the averment of defendant’s residence has been obviated by the new judiciary article of the Constitution, or unless the defect could not be taken advantage of by demurrer.
By section 144 of the Code, the defendant may demur to the complaint when it shall appear, upon the face thereof, either first, that the court has no jurisdiction of the person of the defendant, or the subject of the action.
By section 147, when any of the matters enumerated in section 144 do not appear, on the face of the complaint, the objection may he taken by answer.
To confer jurisdiction on the County Court the complaint must, upon its face, show that the defendant is a resident of the county in which, the action is commenced; and if that fact does not appear, the court has not jurisdiction.
The want of jurisdiction appears upon the face of the complaint within the meaning of these words, as used in section 144 of the Code. The demurrer was, therefore, the proper mode of presenting the defect, and should have been sustained by the Special Term.
The order of the Special Term must be reversed, with leave to plaintiff to amend, on payment of costs in the court below, and of this appeal.
