Gilbert v. York

• Citation: 111 N.Y. 544,19 N.E. 268
• Parties: GILBERT et al. v. YORK et al.
• Decision Date: 11 December 1888
• Court: New York Court of Appeals

111 N.Y. 544

19 N.E. 268

GILBERT et al.

v.YORK et al.¹

Court of Appeals of New York.

December 11, 1888.

Appeal from supreme court, general term, Fifth department.

Action by Albert Gilbert, Jr., and Charles H. Jones against Warner D. York and Selah D. York. Demurrer to plaintiffs' complaint sustained, which judgment was affirmed by the supreme court, and plaintiffs now appeal to this court.

John Woodward, for appellants.

John G. Record, for respondents.

ANDREWS, J.

The case of Frees v. Ford, 6 N. Y. 176, is a decisive authority upon the question presented in this record, unless the rules of pleading prescribed in the Code of Civil Procedure have changed the rule declared in that case, so that it is now unnecessary, in an action brought in a county court for the recovery of a money judgment, that the complaint should aver the jurisdictional fact that the defendant, at the time of the commencement of the action, is a resident of the county in which it is brought. The case of Frees v. Ford was commenced after the adoption of the constitution of 1846, which ordained that the county courts in the several counties, except New York, ‘shall have such jurisdiction in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases.’ By the thirtieth section of the judiciary act of 1847, passed in assumed execution of this constitutional authority, jurisdiction was conferred on the county courts of actions of debt, assumpsit, and covenant, where the debt or damages claimed shall not exceed $2,000, ‘when all of the defendants at the time of commencing the action shall reside in the county in which such court is held.’ The action of Frees v. Ford was commenced after the passage of the judiciary act, but before the enactment of Code 1848. The complaint in that case did not aver that the defendant resided in the county, and the defendant interposed a plea to the jurisdiction, and the plaintiff demurred to the plea; the intention of the parties being to present in this form for the determination of the court the question of the constitutionality of the thirtieth section of the judiciary act, the precise point being whether an act of the legislature conferring jurisdiction of the county courts in certain classes of common law actions, limited only in respect of the amount claimed and the residence of the defendant, made the actions specified special cases within the constitution of 1846. The constitutionality of the act was affirmed by the county court and at general term, but when the case came to this court the judges declined to pass upon the constitutional question; but applying the rule that, on demurrer, judgment must go against the party who committed the first fault in pleading, reversed the judgment of the courts below on the ground that, assuming the constitutionality of the thirtieth section of the judiciary act, nevertheless the complaint was fatally defective, because it did not aver that the defendant resided in the county at the commencement of the action. The court, in assigning the reasons for its judgment, said: ‘The county court is not a court of general jurisdiction, as was the old court of common pleas. On the contrary, it is a new court, with a limited statutory jurisdiction. To all such courts the rule universally applies that their jurisdiction must appear on the record.’ In this way the court avoided deciding in that case the constitutional question raised, but it was afterwards decided in Kundolf v. Thalheimer, 12 N. Y. 593.

The rule declared in Frees v. Ford, that the residence of the defendant in the county is a jurisdictional fact which must be averred in a complaint in an action in the county court, brought under the judiciary act of 1847, would seem to be qequally applicable to an action brought since the constitutional amendment of 1873, and the enactment of section 340 of the Code of Civil Procedure, defining the jurisdiction of county courts. The amendment of 1873 declares that the county courts shall have original jurisdiction in all cases where the defendants reside in the county, in which the damage claimed shall not exceed $1,000. This language, and that of section 340 of the Code, so far as relevant to the present inquiry, is substantially the same as the thirtieth section of the judiciary act of 1847, and, if an averment of residence of the defendant in the county was essential under the act of 1847, the mere fact that the jurisdiction of county courts is now defined by the constitution, but in language substantially identical with the language of that act, would not seem to furnish a sufficient reason for changing the rule of pleading.

But the counsel for the plaintiff relies upon sections 481, 488, and 498 of the Code of Civil Procedure, and especially upon section 488, defining the causes of demurrer, in support of his contention that, in an action in the county court, an averment in the complaint of the residence of the defendant within the jurisdiction is no longer necessary. Section 481 is the general section, applicable to both the supreme and the county court, specifying what a complaint must contain, and there is no specification which requires any averment as to the residence of the parties. But the prescription in this section of matters which must be averred in the complaint is not in terms exclusive. Section 488 authorizes a defendant to demur to a complaint where one or more of eight objections specified ‘appear upon the face thereof,’ and among these objections are objections to the jurisdiction. Section 498 authorizes the objections specified in section 488 to be taken by answer, where they do not appear on the face of the complaint.

It is insisted...