214 A.D. 671 | N.Y. App. Div. | 1925
The complaint in this action in the County Court of Erie county contains no allegation as to the residence of the defendant. The defendant has appeared specially and made a motion under section 280 of the Civil Practice Act and rule 106 of the Rules of Civil Practice to dismiss the complaint on the sole ground that it fails to allege facts sufficient to constitute a cause of action.
The jurisdiction of the County Court is limited to cases in which the defendant is a resident of the county. (N. Y. Const. art. 6, § 14; Civ. Prac. Act, § 67, subd. 3.) It has long been the settled law that it is necessary to allege in the complaint in an action in the County Court the jurisdictional fact of defendant’s residence. (Gilbert v. York, 111 N. Y. 544; Free v. Ford, 6 id. 176.) The absence of such an allegation gives rise to a presumption of defendant’s residence elsewhere than within the county, and the lack
The defendant in this case, however, has not seen fit to question the complaint specifically on the ground that it appears upon its face that the court has not jurisdiction of the person, but solely on the ground that it fails to state facts sufficient to constitute a cause of action. These were formerly separate grounds for demurrer, and the objection based on lack of jurisdiction of the person of the defendant was required to be distinctly specified. (Code Civ. Proc. §§ 488, 490.) Under the new practice, although the demurrer has been abolished (Civ. Prac. Act, § 277), the motion which has been substituted for. demurrer must similarly point out the specific ground where the objection is to the lack of jurisdiction of the person of the defendant. (Civ. Prac. Act, §§ 278, 280; Rules Civ. Prac. rule 106.) In analogous cases it has been held that an objection to a complaint by demurrer for failure to state facts sufficient to constitute a cause of action does not raise the objection that the plaintiff has not capacity to sue (Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; People ex rel. Lord v. Crooks, 53 id. 648; Secor v. Pendleton, 47 Hun, 281; Saile v. Edell, 96 Misc. 264; Herbert v. Montana Diamond Co., 81 App. Div. 212) or the misjoinder or non-joinder of parties (Campbell v. Heiland, 55 id. 95). The residence of the defendant is not strictly apart of the cause of action. It is a jurisdictional fact, and must be alleged because of the limited jurisdiction of the County Court. The plaintiff’s cause of action is the same whether he sues in the Supreme Court or the County Court. (Gilbert v. York, supra.) Again a general appearance in an action in the County Court where the residence of the defendant is not stated in the complaint waives the defect. (Bunker v. Langs, 76 Hun, 543; Gardner v. Condon, 117 Misc. 97.) This is because the defect rests solely in the absence of jurisdiction of the person. If there were lack of jurisdiction of the subject-matter, the general appearance would not waive the defect. (Meyers v. American Locomotive Co., 201 N. Y. 163.)
We reach the conclusion, therefore, that the objection taken by the motion was insufficient to allow defendant to question the jurisdiction of the person of the defendant, although such lack of jurisdiction appears on the face of the complaint. (Drake v. Drake, 41 Hun, 366.)
The decisions in Welsbach Co. v. Norwich Gas & Electric Company (180 N. Y. 533) and in Wood v. Ball (190 id. 217), as explained in
The instant case involves no public policy requiring an anomalous construction.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Hubbs, P. J., Clark, Crouch' and Taylor, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.