#### Adam D. Wheelock, Assignee, etc., Respondent, *v.*Henry M. Lee, Appellant.

A defendant in a civil action, by putting in a general appearance, followed by an answer setting up a want of jurisdiction, in the court, of the action, does not waive this defense.

Accordingly, *held,*that a general appearance by a defendant in an action in the City Court of Brooklyn,*did not preclude him from taking the objection by answer, upon trial, that none of the elements of locality existed, one of which was necessary to give that court jurisdiction.

Also, *held,*that where no other ground of jurisdiction exists, save service of summons within the city, this is a jurisdictional fact, and its omission is not cured by an appearance, as the objection is, not that the court has not jurisdiction of the person, but that it has not jurisdiction of the action.

*It seems,*that if the court had jurisdiction of the action on some of the other grounds, as that the cause of action arose within the city, the general rule would apply, that a general appearance cures any defect in the service of process, or a total absence of any service.

Defendant, in the first instance, demurred to the complaint; the demurrer was overruled, with leave to withdraw it and put in an answer. Defendant availed himself of this leave, setting up facts showing that the court had not jurisdiction. *Held,*that defendant was not precluded by the demurrer from interposing this defense, as the demurrer was then out of the case, and was not available to either party for any purpose.

*Off. and L. O. Ii. R. Co.*v. *Vt. and C. R. R. Co.*(63 N. Y., 176), distinguished.

The joinder of an equitable cause of action with others purely legal does not deprive the defendant of the right of trial by jury.

*496When such an action is brought to trial at Special Term, and. the defendant demands a jury trial, if any of the grounds upon which a recovery is sought are such as were, at the time of the adoption of the Constitution, redressed by an action at law, the court should direct the cause to be tried by a jury at the circuit, or at least should refuse to try without a jury.

A defendant does not waive his right to a trial by jury in such case by consenting that the case be placed on the calendar for trial at the Special Term, and noticing it for trial there.

*It seems,*that where the complaint is framed solely for equitable relief, and the action is tried as one in equity, the court, on finding that plaintiff is not entitled to equitable relief, but that the .facts would warrant an action for damages, cannot order judgment therefor; defendant is entitled to an opportunity to claim a trial by jury on that ground of action.

To constitute a waiver of the right of trial by jury, there must bé some unequivocal act or consent showing an intention to abandon it.

(Argued September 20, 1878;

decided October 4, 1878.)

Appeal from so much of a judgment of the General Term of the City Court of Brooklyn, as affirmed in part a judgment m favor of plaintiff, entered upon a decision of the court at Special Term.

This action was brought by plaintiff, as assignee in bankruptcy of C. F. Freman & Bro.

It is reported on a former appeal in 64 FT. Y., 242.

The complaint contains five counts, the first four alleging in substance the making of various usurious loans by the defendant to the bankrupts, and the payment by the latter of the usurious interest, which plaintiff asked to recover back.

The fifth count alleged the delivery, by the bankrupts to defendant, of various promissory notes as collateral security for said usurious loans, and asked judgment that defendant be required to deliver up the same to plaintiff; and, in the meantime, that he be restrained from disposing of them.

The further material facts appear in the opinion.

*George W. Van Slyck,*for appellant.

The city court had no jurisdiction. *(Landers*v. *S. I. R. R. Co., 53 N.*Y., 450; *Hoag*v. *Lament,*60 id., 96.) The question of jurisdiction *497was not waived by general appearance or by demurrer. *(Landers*v. *S. I. R. R. Co.,*53 N. Y., 450; *Brown*v. *Sar. R. R. Co.,*18 N. Y., 495; *DuPuy*v. *Strong,*37 id., 372.) Defendant was entitled to a trial by jury. *(Brady*v. *Aldrich,*40 N. Y., 511; *Davis*v. *Morris,*36 id., 572; *Hudson*v. Carl, 44 id., 553; *People*v. A. and *S. R. R. Co., 57*id., 161-176; 20 N. Y., 49; *Wheelock*v. *Lee,*64 id., 246.)

*B. E. Valentine,*for respondent.

A defendant wno joins issue on a point of law before objecting to jurisdiction over his person absolutely waives the objection of want of jurisdiction. *(O. R. R. Co.*v. *Vt. R. R. Co.,*63 N. Y., 176.)

Rapallo, J.

The defendant set up in his answer that the plaintiff’s cause of action, if any, did not arise in the city, of Brooklyn but in the city of Yew York. That at the time of the commencement of this action the defendant did not reside in the city of Brooklyn, that he never resided or had a place of business there, and that the summons was served in the city of Yew York and not in the city of Brooklyn and that consequently the City Court of Brooklyn had no jurisdiction of the person of the defendant or of the action. These allegations are substantiated by the evidence and findings, and it is conceded that they establish a want of jurisdiction in the city court and a fatal objection to the judgment, unless such objection has been waived or cured.

This question was not passed upon nor did it arise when this case was before us on the first appeal. The facts upon which the objection is based were not in the case, the court below having excluded proof of them. A new trial was ordered on other exceptions. The defendant, by putting in a general appearance, followed by an answer setting up the want of jurisdiction, did not waive that defense. This was expressly decided in the case of *Landers*v. *Staten Island Railroad Co.*(53 N. Y., 450, 460). The prevailing opinion in that case sets forth fully the grounds upon which it was held that the city, court was without jurisdiction. They *498are in substancé that the city ctiurt was a local court of limited jurisdiction at the time of the adoption of the judiciary article of the State Constitution in 1869 and. that it was continued as such and it was even beyond the power of the Legislature to divest it of its local character. That its jurisdiction was limited to cases in which the cause of action arose within its territorial limits, add cases in which the subject of the action was situated, or the party proceeded against resided, or was served with process, within those limits. That some one or more of these elements of locality must exist to confer upon the court jurisdiction of the cause. It follows that where none of them exists, a mere appearance does not preclude the defendant from talcing the objection. Where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. Its omission is not cured by an appearance, for the objection is not simply that the court has not jurisdiction of the person of the defendant, but that it has not jurisdiction of the cause. *(Burckle*v. Eckhart, 3 Comst., 132.) In a case in which the court had jurisdiction of the cause on some of the other grounds, as, for instance, where the cause of action arose within the city of Brooklyn, the general rule would apply, that a genéral appearance cures any defect in the service of process to bring the defendant into court, and even the total absence of any service. But where, as in this case, the only element of locality which can exist, and the only means by which the cause can be brought within the jurisdiction of the court as a local court, is the service of the summons within a certain. territory, that rule is not applicable. But the point having been expressly adjudged it is not necessary to pursue it . farther.

It is further claimed that the defendant by interposing a demurrer to the complaint precluded himself from setting up the defense of want of jurisdiction, after his demurrer was overruled, and the case of *Ogdensburg and L. C. R. R.*v. *Vermont and C. R. R.*(63 N. Y., 176) is cited as sustaining that position. In that case a demurrer was interposed on the *499ground that it appeared on the face of the complaint that the court had not jurisdiction over the defendants they being foreign corporations and non-residents.' It was not held that by the fact of demurring the defendants waived this ground of demurrer. On the contrary, the demurrer was sustained in the Supreme Court and the plaintiff appealed to this court. The defendants moved to dismiss the appeal which had been taken from the decision rendered in their favor, on the ground among others that they had not been served with process in the action. The case was not one in which the service of process within any particular locality was a fact upon which the jurisdiction of the court oyer the cause depended, nor was it analogous to the present case in any particular. :.

In the present case leave was granted to the defendant to withdraw his demurrer and put in his answer. He availed himself of this leave and answered, setting up facts showing that the city court had no jurisdiction. The demurrer was then out of the case and formed no part of the record. *(Brown*v. *Saratoga R. R. Co.,*18 N. Y., 495.) It is not available to either party for any purpose and the fact that it was once interposed does not preclude the defendant from setting up the facts which he might originally have set up by way of answer, showing want of jurisdiction. For the same reason that this objection was not waived by his appearance, it is not cured by the fact that he demurred and withdrew his demurrer. The same facts existed in the case of *Hoag*v. *Lamont*(60 N. Y., 96) but they were not deemed material and the subsequent defense by answer of want of jurisdiction was sustained. The principle upon which all these decisions rests is, that to extend the jurisdiction of the city court to cases not arising within its jurisdiction, where the defendants do not reside and are not served therein, would be to deprive it of its character of a local court, and that some one of the specified elements of locality must exist to give it jurisdiction of the cause. Under the decisions cited the defense of want of jurisdiction was established.

*500The appellant takes the further point that he was entitled to a trial by jury. The first four causes of action specified in the complaint are clearly triable by jury. They are for the recovery of money only, and maintainable at common law. *(Palen*v. *Johnson,*50 N. Y., 49; *Wheelock*v. *Lee,*64 id., 246.) The fifth cause of action only is for equitable relief, viz., the surrender of the securities given for the usurious loans. The joinder of an equitable cause of action with others purely legal does not deprive the defendant of the right of trial by jury. *(Bradley*v. *Aldrich,*40 N. Y., 511.) When such an action is brought to trial at Special Term and the defendant demands a jury trial, the judge must determine whether any of the grounds upon which a recovery is sought are such as at the adoption of the Constitution were redressed by an action at law, and if so should direct the cause to be tried by a. jury at the circuit, or at all events should refuse to try the cause without a jury. *(Davis*v. *Morris,*36 N, Y., 569, 572; *Hudson*v. *Caryl,*44 id., 553.) Where the complaint is framed solely for equitable relief, and the action is tried as an action in equity, the court, on finding that the plaintiff is not entitled to any equitable relief, but that the facts would warrant an action for damages which he has not alleged or claimed, cannot order judgment for such damages. *(Bradley*v. *Aldrich,*40 N. Y., 504.) An opportunity must have been afforded to' the defendant to claim a jury trial on that ground of action.

The respondent claims that the appellant waived his right to a jury trial by consenting that the case be placed on the calendar for trial at the Special Term, and by noticing the case for trial at that term. We do not think these acts amounted to a waiver,— there was. no consent that the action be tried without a jury and • at the first opportunity the defendant demanded a jury trial. The case in one of its aspects was triable at Special Term, and had the plaintiff elected to rely solely on his equitable cause of action he could have proceeded with the trial there. In the cases cited *501above, this court gives a strong intimation that a trial by-jury can be waived only in the manner prescribed by the Code, or by entirely failing to object, but it is not necessary to decide that point now. It is sufficient to hold that at all events there must be some unequivocal act or consent showing an intention to abandon the constitutional right, and no such intention is apparent here.

Being of opinion that on both of the grounds stated the judgment must be reversed it is not necessary to consider the other points in the case.

Judgment reversed, with costs.

All concur, except Miller and Earl, JJ., absent.

Judgment reversed.