#### SLAVIN et al. v. MANSFIELD.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Justices of the Peace— .Jurisdiction—•Nonresidence.

Code Civ. Proc. § 2869, provides that “an action must be brought before a justice of the town or city wherein one of the parties resides or a justice of an adjoining town or city in the same county except in one of the following cases: * * * (3) Where the defendant is a nonresident of the county it may be brought before a justice of the town or city in which he is at the time of the commencement of the action.” *Held,*that an action may be brought against a nonresident defendant in a town adjoining the city in which plaintiff resides, though defendant was not in such town when the action was commenced.

Appeal from Albany county court.

Action by Thomas Slavin and Thomas F. Slavin against William K. Mansfield on account of goods sold and delivered, and for a balance alleged to be due plaintiffs in a prior settlement. From a judgment of the county court reversing a judgment in favor of plaintiffs, plaintiffs appeal. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Henry J. McCormick, for appellants.

P. D. & Smith Niver (P. D. Niver, of counsel), for respondent.

HERRICK, J.

The plaintiffs reside in the city of Cohoes, the defendant resides in the county of Saratoga. The action was brought in the justice’s court in the town of Watervliet, which adjoins the city of Cohoes. The defendant was served with a summons in the city of Cohoes. The judgment was rendered in favor of the plaintiffs, and against the defendant, for the sum of 138.29 *922damages and $3.85 costs. The defendant appealed to the county court of Albany county. The county court reversed the judgment of the justice’s court upon the ground that such court had no jurisdic; tion over the defendant. This I think was error. Section 2869 of the Code of Civil Procedure provides 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, except in one of the following cases: * * Subd. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action.” Subdivision 3 of section 2869 is not a restriction or a limitation of the jurisdiction of the justice, but is an addition to the jurisdiction given by the first part of the section. Bennett v. Weaver, 50 Hun, 111, 3 N. Y. Supp. 776. The plaintiffs brought their action in the town adjoining the one in which they resided. They had the right to bring into such court any person over whom the court had jurisdiction. It had jurisdiction over the defendant, he being found in the county, unless there is something in the statute depriving it of jurisdiction. Subdivision 3. of the section referred to is not a provision that a nonresident must be sued in the court in the town wherein he is at the time the process is served upon him. The provision is permissive, not compulsory. He may be sued in such town, although the plaintiff does not live there nor in the adjoining town. The justice’s court, therefore, had jurisdiction over the defendant, and the judgment of the county court should be reversed, and that of the justice’s court affirmed, .with costs of this appeal and of the appeal to the county court. All concur.