102 N.Y.S. 1000 | N.Y. App. Div. | 1907
Lead Opinion
It is claimed, by the appellant that the plaintiff- (now deceased) was not .a resident of the State at the time of the commencement of the action, and therefore could not maintain1 the action for the reason that the appellant is a foreign corporation (Code Civ. Pro. sec. 1780). There was no such issue on the pleadings. Our Supreme Oourt being a court of general jurisdiction its jurisdiction is’ pre-.' sumed unless lack of jurisdiction appear on the complaint itself. It is true that the complaint alleged that the plaintiff was a resident of the State, but no issue could be raised thereon by the denial, because it was an unnecessary allegation. It was no part of, and therefore immaterial to the cause of action, and (as is the every day rule) no issue can be joined on an immaterial allegation in a pleading (Brown v. Travellers' Life Ins. Co., 21 App. Div. 42; Linton v. Unexcelled Fireworks Co., 124 N. Y. 533). The residence of the plaintiff was material to the jurisdiction of the court, not to the cause of action. Her non-residence was a defence, and had to be pleaded as such in the answer to, be put in issue ; and the burden of proof thereon would be on the defendant, as is the case with all defences.It was not so pleaded. ' Ho issue of fact can be litigated which the pleadings do not present., The plaintiff could not be confronted with an issue of her non-residence on the trial any-more than with any other issue of fact not presented by the pleadings. That if it happened to appear on the trial by the plaintiff’s testimony or otherwise that the plaintiff was a non-resident the court would on the defendant’s motion have to dismiss the case, or could do so of its own motion; or even on a motion before trial, the facts being undisputed (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315), is another
Moreover, the denial in the answer of the allegation of residence in the complaint was not good, viz., it was “ on information and belief ” of any knowledge or information sufficient to form a belief.
The evidence on the trial was also sufficient to uphold the finding of the jury that the plaintiff was a resident.
The judgment should be affirmed.
Present — Woodward, Jerks, Hooker, G-ayror and Rich, JJ.
Concurrence Opinion
I concur in the result, but cannot assent to the proposition that non-residence' must be pleaded. The defendant is a foreign corporation, and upon this appeal contends that Mrs. Ubart was a nonresident of this State at the time this action was commenced and that the trial court was, therefore, without jurisdiction. Counsel urges that it was incumbent upon- the plaintiff to show by a preponderance of the evidence’that the domicile of John Ubart (the husband) was in the State of Hew York at the time the action was commenced. The complaint alleges that the plaintiff was at the time of the commencement of the action a resident of the State of Hew York. The answer consists of a single paragraph as follows: “ And now comes the defendant above named and * * * answers the . complaint of the plaintiff above named and thus answering: I». On information and belief, denies any knowledge or information sufficient to form a belief as to the truth of any of the
I vote to affirm, with costs.
Judgment and order unanimously affirmed, with costs.