#### Albert Gilbert, Jr., *et al.*Appl’t, *v.*Warren D. York, *et al.,*Resp’t.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

County court — Jurisdiction — Complaint in action must allege RESIDENCE OE DEFENDANT IN COUNTY — OMISSION IS GBOUND OF DEMUBREB.

In an action brought in the County Court to recover money due for price of goods sold and delivered, the complaint alleged that the defendants as well as the plaintiffs were engaged in business in the county, but contained no averment as to the residence of either of the parties. Upon demurrer to the complaint because not containing an allegation that the defendants were residents of the county, *Held,*that lack of an allegation of residence in the complaint was a jurisdictional defect, and properly the subject of demurrer.

Appeal from a judgment of the Chautauqua county court sustaining a demurrer to the complaint.

*279
      *J. A. Parsons,*atty. for applt’s.; *John Woodward,*of counsel; *Record § Hooker,*for respt’s.

Smith, P. J.

Action to recover tbe sum of $ 57.50, tbe price of a quantity of flour alleged to bave been sold and delivered by tbe plaintiffs to tbe defendants. Tbe complaint alleges that the defendants, as well as tbe plaintiffs, were engaged in business in tbe County of Chautauqua, but it contains no averment as to tbe residence of either of tbe parties. The lack of an averment that the defendants were residents of tbe county of Chautauqua, at the time of the commencement of the action, is tbe ground upon which the respondent’s counsel contends that the demurrer should be sustained.

The appellants’ counsel insists that as it does not appear upon the face of the complaint, that the defendants are not residents of the county, the demurrer is not well taken, and that if they do not reside in the county, their remedy is to set up the fact in their answer, as a defence.

It is true that a demurrer will not lie to a complaint, except for objections appearing upon the face thereof, (Code C. P., § 488,) and where the ground of demurrer does not appear on the face of the complaint, the objection may be taken by answer. (Id., §. 498.)

The question is, therefore, whether the omission of an averment that the defendants are residents of the county, makes the complaint demurrable on its face. And that question will be answered by determining whether the fact of residence within the county is essential to the jurisdiction of the county court. For, if it is, the omission to aver it, is a fatal defect, apparent on the face of the complaint, inasmuch as the complaint must allege every fact necessary to a good cause of action!

Under the constitution of 1846, it was held that the county courts have not a general jurisdiction, as had the courts of common pleas, which they superseded, but that they are new courts with a special, limited and statutory jurisdiction, *(Frees*v. *Ford,*2 Seld., 176.)

The constitution, now in force, continues the county courts as they existed under the constitution of 1846, and provides that they shall have the powers and jurisdiction which they possessed thereunder, and shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed one thousand dollars, (Art. VI. §. 15.) A provision corresponding to the latter, has been enaeted-by the legislature. (Code C. P., §. 340, subd. 3.)

There is authority for saying that the provisions above referred to make the fact of the defendant’s residence within the county, a requisite to jurisdiction, not only of the person of the defendant, but also of the action.

*280In *Frees*v. *Ford, (supra.)*which was an action in a county court, the complaint did not contain any allegation as to the residence of the defendant. The defendant pleaded that the causé of action was not subject to the jurisdiction of-the county court. The plaintiff demurred to the plea, and it was adjudged in his favor. The supreme court affirmed, but on appeal to the court of last resort, the judgment was reversed, on the ground that the fact of residence was jurisdictional, and it not appearing on' the record, the defect was fatal.

There are analogous decisions to the same effect. In *Burckle*v. Eckhart, (3 Comst., 132.) • a question of jurisdiction arose under a provision of the Revised Statutes, which declared that every circuit judge within the limits of his circuit, shall, concurrently with the chancellor, have and exercise, all the original jurisdiction and powers vested in the chancellor, in all cases and matters in equity, where such causes and matters shall have arisen within the circuit of such judge, or . . . where the defendants or persons proceeded against, or either of them, reside within such limits, (2 R. S., 168, §. 2.) It was held that hi a case under the latter clause, the residence of a defendant within the limits of the circuit is a jurisdictional fact, and where that is wanting, the mere appearance of the defendant does not cure the defect. GaudiNER, J., speaking for a majority of the court, said: “ The residents of a defendant within the limits of the circuit, according to the 3d subdivision of the the 2d. section of the statute above quoted, is a jurisdictional fact which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person” (p. 137).

*Wheelock*v. *Bee,*(74 N. Y., 495,) was an action- commenced in the city court of Brooklyn, the jurisdiction of which was held to be limited to cases in which the cause of action arose within its "territorial limits, and cases in which the subject of the action was situated, or the party proceeded against resided, or was served with process, within those limits. It was also held that some one or more of these elements of locality must exist to confer upon the court jurisdiction of the cause ; and that where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. “ Its omission,” said Rapello, J., speaking for all the members of the court who took part in the decision, “ 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.”

The same doctrine was reiterated in the recent case of *Davidsburgh*v. *Ins. Co.,*(90 N. Y., 526,) which, also, was an action brought in the city court of Brooklyn. The defendant was a domestic corporation. The summons was served upon the see*281retary of the corporation, in the city of Brooklyn, where he resided. The defendant appeared generally in the action and answered, and in no manner before trial complained that it was not regularly in court, or that the court had not jurisdiction. On the trial, it appeared that the defendant was established and transacted its general business in the city of New York, and at the close of plaintiff’s case, the court, on motion of the defendant’s counsel, dismissed the complaint for want of jurisdiction. The court of appeals held, no error; that the court could not acquire jurisdiction of the action by consent, and might, whenever its attention was called to the matter, refuse to exceed the powers conferred upon it by the statute. “ There are, no doubt,” said the court, “ many cases where the court having jurisdiction over the subject-matter may proceed .against a defendant who voluntarily submits to its decision, but where the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such case the particular condition or status of the defendant is made a jurisdictional fact.” (p. 530).

*Judge*v. Sail, (5 Lans., 69.) decided by the general term in the old. fourth department, is an adjudication in point, in the defendant’s favor.

There is another class of cases, in which it has been held, or *dicta*have been uttered, to the effect, not that the fact of residence is not jurisdictional, but that it relates to jurisdiction of the person of the defendant, and not of the action, and therefore, that the objection that such fact is not alleged in the complaint, may be waived.

An expression at the close of the dissenting opinion of Welles, , J., in *Frees*v. *Ford, (sup.)*seems to present that idea.

The case of *Holbrook v. Baker,*(16 Hun. 176,) cited by the appellant’s counsel, is to that effect. The counsel contends that it overrules *Judge*v. *Hall,*(supra.) It is true, the reporter has so noted it, and the opinion is there expressed that *Judge*v. *Mall,*was erroneously decided. But it seems to us that the two cases are not necessarily in conflict. In *Solbrook's*case, the complaint alleged that at the several days and times thereinafter mentioned, “ the above named defendant was a resident of the village of Sing Sing in the county of Westchester.” The action was brought in the county court of Westchester. The court in the second department inclined to the opinion that the complaint showed on its face that the county court had jurisdiction of the person of the defendant but did not determine the point. We think the decision might well have been put upon the ground that the allegation was sufficient to give jurisdiction. *(Burns v. O'Neil,*10 Hun, 494.) But, in another respect, the case differs from the one before us. The defendant, instead of demurring, answered on the merits, and went to trial, and after *282a jury bad been impanelled raised tbe objection for tbe first time, by a motion to dismiss tbe complaint. Tbe general term evidently took the view that tbe objection went only to the jurisdiction of tbe person, and that tbe conduct of tbe defendant was a waiver. In that view, tbe case does not conflict with *Judge*v. *Hall*in respect to tbe proposition that an allegation of residence is requisite to jurisdiction of tbe person. Upon that point, it is in accord with *Dake*v. *Miller,*(15 Hun, 356,) where tbe opinion was written by tbe same judge who wrote in *Judge*v. *Hall.*

In *Heenan*v. *N. Y., W. S. & B. R. R. Co.,*(34 Hun., 602,) also cited by tbe appellant’s counsel, tbe allegations in tbe complaint as to residence were held sufficient, and tbe point decided, was, that tbe defendant, by appearing and controverting those allegations and setting up the fact of non-residencé in his answer, did not waive the objection to tbe jurisdiction. And in that case, it was said by the court^ that “ tbe question is not one of jurisdiction of tbe person of the defendant merely. It is one as to tbe limitation of tbe power of the county court” (p. 605).

All the cases, to which our attention has been called, are agreed that tbe lack of an allegation of residence in the complaint is a jurisdictional defect-, tbe only point of difference being, whether it goes to tbe jurisdiction of the cause of action, or only to jurisdiction of the person of tbe defendant, in which case it may be waived.

But even tbe latter view of tbe matter does not aid the plaintiff, for in this case there has been no waiver. The defendants have simply availed themselves of their remedy by demurrer, and that they have done promptly.

The judgment should be affirmed with costs, with leave to the plaintiffs to amend in twenty' days on payment of the costs of this appeal -and of the demurrer.

Haight and Bradley, JJ., .concur; Barker, J., taking no part.

So ordered.