#### Aaron Wells, Appellant, *v.*Carrie L. Scofield, as Administratrix, etc., of Frederick R. Scofield, Deceased, Respondent.

Third Department,

May 7, 1913.

Appeal — reversal of judgment of City Court by County Court—jurisdiction of City Court of Ithaca — failure of complaint to state residence of parties — waiver — demurrer — parent and child—action to recover for necessaries furnished to infant — evidence — proof of infancy.

Where the County Court reverses a judgment of the City Court of Ithaca without opinion and there is nothing to show that it was reversed as against the weight of evidence, the Appellate Division will assume that the reversal was upon the law.

Although a complaint in the City Court of Ithaca failed to state the residence of the parties, the defect, if any, is waived where the defendant appeared and submitted to the jurisdiction.

A defendant cannot by demurrer raise the question of the jurisdiction of the City Court of Ithaca, that being a Justice’s Court and within the provisions of section 2939 of the Code of Civil Procedure.

Nor does the objection that the complaint does not state facts sufficient to constitute a cause of action raise the question of the jurisdiction of the court.

Action against a parent to recover for necessaries furnished to his son. Evidence examined, and *held,*sufficient to establish a *prima facie*case of infancy.

In such action the plaintiff should be allowed to show the appearance of the boy as bearing upon the question of his age.

Appeal by the plaintiff, Aaron Wells, from a judgment of the County Court of Tompkins county, entered in the office of the clerk of said county on the 31st day of August, 1912, reversing a judgment of the City Court of Ithaca in favor of the plaintiff entered in the office of the clerk of said court on the 19th day of March, 1912.

*Aaron G. Mintz,*for the appellant.

*Miller & Stephens [Friend H. Miller of*counsel], for the respondent..

Smith, P. J.:

The County Court has reversed this judgment without opinion and without any indication of the errors which were deemed *9to impair the same. Not having reversed the judgment as against the weight of evidence we must assume that the reversal was upon the law, and upon that assumption will consider the questions raised.

This reversal is sought to he sustained, *first,*upon the ground that the complaint failed to state the residence of the parties and thus failed to show that the City Court of Ithaca had jurisdiction of the defendant. Whether or not the complaint was sufficient to show the jurisdiction of the City Court of Ithaca the defendant’s intestate has waived any defect therein hy appearing and submitting to the jurisdiction of the court. *(Bunker*v. *Langs,*76 Hun, 543.) It is contended by the respondent’s counsel that the question of the jurisdiction of the court was raised first by demurrer. In the first place the grounds of the demurrer do not appear in the record. But even if by the demurrer the jurisdiction of the court had been challenged that fact would not avail respondent. The practice in the City Court of Ithaca as to its pleadings is regulated by the provisions of the Code applicable to Justice’s Court. (See Ithaca City Charter [Laws of 1908, chap. 503], § 67.) By section 2939 of the Code of Civil Procedure, regulating pleadings in Justice’s Court, it is not the office of the demurrer to raise the question of the jurisdiction of the court. The objection that the complaint does not state facts sufficient to constitute a cause of action does not reach this question. If the mere statement of this proposition need corroboration, such may be found in the provision for demurrer in the Supreme Court (Code Civ. Proc. § 488), wherein a defendant is allowed to demur either on the ground that the court has not jurisdiction of the person or subject-matter or on the ground that the complaint doesnot state facts sufficient to constitute a cause of action. The respondent here further claims to have raised the question by a motion to dismiss the complaint. The record does not show that any such motion was made upon the ground that the court had no jurisdiction of the defendant, or upon the ground that the complaint was defective in not alleging jurisdictional facts.

If the judgment of reversal can stand it must stand upon a holding that the facts proven do not warrant the judgment. The defendant did not appear upon the stand and no witnesses *10were sworn in her behalf. The sale of the goods to the son of defendant’s intestate is shown beyond question. While the son’s age is not specifically shown, we think enough has been shown to establish a *prima facie*case of his infancy. The plaintiff should have been allowed to show the appearance of the boy as bearing upon the question of his age, but such evidence was excluded by the city judge. The boy, however, was an underclassman in Cornell University. He was spoken of as “the boy ” by defendant’s intestate in a letter written to the plaintiff. In that letter the purchase by the boy was in fact ratified, and the liability of the defendant’s intestate was acknowledged. In the absence of any evidence on the part of the defendant and with the actual sale undisputed and unquestioned, we think it should be held that a *prima facie*case was made which called upon the defendant to show either that the boy was of age, or that the goods were not necessaries within the provision of the law. Therefore, the judgment cannot be said to have been without evidence. We are unable to find any valid ground for the reversal of the judgment, and it follows that the judgment of the County Court must be reversed, with costs, and the judgment of the City Court affirmed.

All concurred.

Judgment reversed, with costs, and judgment of the City Court affirmed.