#### William A. Meuthen, Respondent, *v.*John H. Eyelis, Appellant.

(Supreme Court, Appellate Term,

November, 1900.)

Municipal Court of the city of New York — Jurisdiction not dependent on residence of defendant.

The record of an action in the Municipal Court of the city of New York need not, for the purposes of jurisdiction, show that the defendant was a resident of said city, and this because said *court*is a continuation of the former District Courts, whose jurisdiction was dependent upon the character of the action and not upon the residence of the parties.

The objection that the record does not show residence of the defendant within said city cannot be raised in the first instance upon appeal.

Motion for a reargument of the appeal herein.

M. Strassxnan, for motion.

Frank X. McCaffry, opposed.

Beekman, P. J.

Judgment was rendered in favor of the plaintiff in the action, which was brought in the Municipal Court of the city of ¡New York. Upon an appeal therefrom to this court the objection was made for the first time, that it nowhere appeared in *99the record that the defendant was a resident of said city, and it was contended that for this reason the judgment should be reversed, inasmuch as the jurisdiction of the Municipal Court did not extend over persons not residents of said city; and that said court being of inferior and local jurisdiction and not a court of record, the jurisdictional facts must affirmatively appear upon the face of the proceedings. This court accepted this view of the law, citing Tyroler v. Gummersbach, 28 Misc. Rep. 151, and Willis v. Parker, 30 id. 750. The judgment was accordingly reversed and a new trial ordered. A motion is now made for a reargument of the appeal. We are of the opinion that it should be granted. Since the decision of this appeal the Court of Appeals has held that the Municipal Court is not a new court created by the Legislature, under section 18, article VI of the State Constitution, but is a continuation of the District Courts, and is not, therefore, affected by the limitations expressed in the constitutional provision above mentioned. Worthington v. London Guarantee *&*Accident Co., 164 N. Y. 81.

The decision of this court in the case of Tyroler v. Gummersbach, above cited, proceeded solely upon the theory that the Municipal Court was a newly-created tribunal, and not a continuation of the District Courts. In the course of the opinion of the court in that case, it was said (p. 155): *“*If, therefore, it could be held that the Municipal Court of the city of Mew York is but a continuation of the District Courts of the city of Mew York with substantially the same jurisdiction theretofore possessed by said courts, the claim of the appellant would be untenable.” The opinion also refers to the case of Dammann v. Peterson, 17 Misc. Rep. 369, where it was held by this court that the plaintiff in an action in a District Court was not required to allege or prove the residence of either or all of the parties within the judicial district, and that the rule, laid down in Frees v. Ford, 6 N. Y. 176, and Gilbert v. York, 111 id. 544, to the effect that all the facts necessary to confer jurisdiction must affirmatively appear in the record, including the residence of the defendant, applied only to County Courts, and did not apply to the District Courts, because the jurisdiction of the latter was made to depend solely upon the character of the cause of action, and not upon the residence of the parties. It will tiras be observed that the doctrine laid down in the Tyroler case has been completely overthrown by the decision of the Court *100of Appeals in the Worthington case, and that the rule enumerated by this court in the Dammann case, *supra),*is applicable to the Municipal Court of the city of New York, and must prevail in the case at bar.

We are further of the opinion that an objection, such as that which was raised here, cannot be taken for the first time upon appeal. Hill v. Moebus, 31 Misc. Rep. 134; Dammann v. Peterson, *11*id. 369; Bang v. McAvoy, 52 App. Div. 501.

The motion for a reargument of the appeal is granted, such reargument to be held at the October term.

Gtegerioh and O’Gorman, JJ., concur.

Motion granted.