#### Larocque *v.*Harvey.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

L -Justices of the Peace—Jurisdiction.

Under Code Civil Prop. IT. Y. § 2861, providing that a justice of the peace has only the civil jurisdiction given him by statute, a justice has no jurisdiction of the person of defendant in an action brought in violation of Code Civil Proc. IT. Y. § 2869, providing that an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county.

S. Appeal from Inferior Courts—Practice.

On appeal from the judgment of a justice in such case, affidavits of defendant, showing the residence of the parties, are competent, under Code Civil Proc. § 8057, providing that, upon appeal, errors in fact not affecting the merits of the action, and not within the knowledge of the justice, may be determined upon affidavits.

Appeal from Franklin county court.

Action by Joseph Larocque against Willis C. Harvey. A judgment of a justice of the peace in favor of plaintiff was affirmed by the county court, and defendant appeals. The defendant did not appear before the justice upon the return-day of the summons. The justice of the peace resided, and had his office, in the town of Malone, and the summons was returnable there. Both the plaintiff and the defendants were at the time residents of the town of Waverly, in Franklin county. The town of Waverly does not adjoin the town of Malone. These facts appear upon the affidavit of the defendant, served in connection with his notice of appeal, and are not disputed.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*J. W.*We6b, for appellant. *Relias & Munsill,*for respondent.

*577Landon, J.

The justice of the peace had no jurisdiction of the person of the defendant. *Houghtaling*v. *Groesbeck,*51 N. Y. 673. Section 2869, Code Civil Proc., provides: “An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county.” There are certain exceptions, not material here. A justice of the peace has the civil jurisdiction given him by statute, and no other. Section 2861. Upon appeal, errors in fact not affecting the merits, and not within the knowledge of the justice, may be determined upon affidavits. Section 3057. The affidavit of defendant, showing the residence of the parties, was therefore competent, and properly received. *Griffin*v. *Norton,*5 N. Y. St. Rep. 812; *Vallen*v. *McGuire, 2 N.*Y. Supp. 381. The plaintiff cites section 3064. That section is applicable to a defendant in default who seeks to open it. In such case, he appeals to the discretion and favor of the court. Here the defendant asks no favor. He denies the jurisdiction of the justice. If the facts deprived the justice of jurisdiction, it was the defendant’s right to show them. In *Hoffman*v. *Barton,*14 N. Y. St. Rep. 506, cited by plaintiff, it does not appear that such facts were shown. The fact that the defendant did not appear in response to a summons which the justice had no jurisdiction to issue, was no waiver of his right to his subsequent objection to an unauthorized judgment. Judgment reversed, with costs. All concur.