3 N.Y. 193, Turner v. Roby

Citation:3 N.Y. 193
Party Name:TURNER v. ROBY and others.
Case Date:December 01, 1849
Court:New York Court of Appeals

Page 193

3 N.Y. 193

TURNER

v.

ROBY and others.

New York Court of Appeal

December 1, 1849

Page 194

COUNSEL

J. L. Talcott, for appellants.

I. T. Williams, for respondent.

BRONSON, J.

Assuming that the replication is bad for duplicity, the plaintiff was still entitled to judgment on the ground that the plea is insufficient. In stating the former recovery against Roby, it is not shown that the justice acquired jurisdiction over the person of the defendant. In pleading the judgments of inferior courts of special and limited jurisdiction--and such are our justices' courts--it is necessary to show that the court not only had jurisdiction of the subject matter in controversy, but that it also acquired jurisdiction over the person of the defendant. The only cases in this state which seem to militate against the rule are, Smith v. Mumford, (9 Cowen, 26, ) and Stiles v. Stewart, (12 Wend. 473:) but both of those cases

Page 195

came before the court after verdict. And besides, in both cases the attention of the court was confined to the question of jurisdiction of the subject, and no notice whatever was taken of the question of jurisdiction over the party. If the defect in pleading was not cured by the verdict, as I am inclined to think it was, still the most that can be said of either of those cases is, that the court overlooked a question which should have been considered; and not that the point was decided, either one way or the other. It has sometimes been supposed that the case of Stiles v. Stewart makes a distinction between setting up a judgment in a declaration, and in a plea; and that in the former case jurisdiction need not be shown, though it must in the latter. That would answer the plaintiff's purpose in this case, for the question arises on a plea. But there is nothing in the distinction. With a single exceptioniwhich will be noticed hereafter, whenever the judgment of an inferior court of special and limited jurisdiction is pleaded--whether in a declaration or any other pleading, it is necessary to show that the court had authority, both as to subject and person, to render the judgment. The general rule is so fully settled, and of such every day application, that I need not cite books to prove it. It was formerly held necessary to set out the proceedings at large; but in modern times it is enough to state the facts which show jurisdiction, and then say, taliter...

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16 practice notes
  • 93 N.Y. 118, Parker v. Conner
    • United States
    • New York New York Court of Appeals
    • 2 Octubre 1883
    ...v. Westervelt, 15 Abb. 230; Grosvenor v. Hunt, 11 How. 355; Berry v. Riley, 2 Barb. 307; Oakley v. Becker, 2 Cow. 454; Bacon v. Cropsey, 3 N.Y. 195.) It was competent to show, as bearing upon Page 122 the good faith of a transfer, upon credit, of $9,000 worth of property, that the pretended......
  • 143 N.Y. 511, Hunting v. Blun
    • United States
    • New York New York Court of Appeals
    • 27 Noviembre 1894
    ...21 A. 640; Carpenter v. W. A. B. Co., 32 F. 434, 435; Reifsnider v. A. I. P. Co., 45 id. 433; Eliot v. Piersol, 1 Pet. 328; Turner v. Roby, 3 N.Y. 193.) If plaintiff is permitted to introduce a judgment in evidence, as an excuse for not performing a duty required by statute, it is just to a......
  • 117 N.Y. 297, Mccorkle v. Herrman
    • United States
    • New York New York Court of Appeals
    • 26 Noviembre 1889
    ...v. Johnson, 1 Daly, 61; Fay v. Adams, 8 Mo. App. 566; Dean v. Wheeler, 2 Wis. 224; Id. 80, 81; City v. Barr, 45 Ind. 258; Turner v. Roby, 3 N.Y. 193; Wheeler v. Raymond, 8 Cow. 311.)The intent of the statute is merely to subrogate the sub-contractor to the contractor's right. (Herbert v. He......
  • 98 N.Y. 239, Osterhoudt v. Ulster County Sup'rs
    • United States
    • New York New York Court of Appeals
    • 3 Marzo 1885
    ...20; Wells v. Newkirk, Id . 228; Bowen v. People, 4 J. R. 292; Bloom v. Burdick, 1 Hill, 130; Adkins v. Bowers, 3 Cow. 206; Turner v. Roby, 3 N.Y. 193.) These cases of McKeon and Charles Schuman, for matters and charges passed upon and rejected by a former board of town auditors, the board o......
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16 cases
  • 93 N.Y. 118, Parker v. Conner
    • United States
    • New York New York Court of Appeals
    • 2 Octubre 1883
    ...v. Westervelt, 15 Abb. 230; Grosvenor v. Hunt, 11 How. 355; Berry v. Riley, 2 Barb. 307; Oakley v. Becker, 2 Cow. 454; Bacon v. Cropsey, 3 N.Y. 195.) It was competent to show, as bearing upon Page 122 the good faith of a transfer, upon credit, of $9,000 worth of property, that the pretended......
  • 143 N.Y. 511, Hunting v. Blun
    • United States
    • New York New York Court of Appeals
    • 27 Noviembre 1894
    ...21 A. 640; Carpenter v. W. A. B. Co., 32 F. 434, 435; Reifsnider v. A. I. P. Co., 45 id. 433; Eliot v. Piersol, 1 Pet. 328; Turner v. Roby, 3 N.Y. 193.) If plaintiff is permitted to introduce a judgment in evidence, as an excuse for not performing a duty required by statute, it is just to a......
  • 117 N.Y. 297, Mccorkle v. Herrman
    • United States
    • New York New York Court of Appeals
    • 26 Noviembre 1889
    ...v. Johnson, 1 Daly, 61; Fay v. Adams, 8 Mo. App. 566; Dean v. Wheeler, 2 Wis. 224; Id. 80, 81; City v. Barr, 45 Ind. 258; Turner v. Roby, 3 N.Y. 193; Wheeler v. Raymond, 8 Cow. 311.)The intent of the statute is merely to subrogate the sub-contractor to the contractor's right. (Herbert v. He......
  • 98 N.Y. 239, Osterhoudt v. Ulster County Sup'rs
    • United States
    • New York New York Court of Appeals
    • 3 Marzo 1885
    ...20; Wells v. Newkirk, Id . 228; Bowen v. People, 4 J. R. 292; Bloom v. Burdick, 1 Hill, 130; Adkins v. Bowers, 3 Cow. 206; Turner v. Roby, 3 N.Y. 193.) These cases of McKeon and Charles Schuman, for matters and charges passed upon and rejected by a former board of town auditors, the board o......
  • Free signup to view additional results