Opinion
March 9, 1938.
Appeal from County Court of Broome County.
Appeal from an order and judgment of the County Court of Broome county affirming a judgment of the Justice Court of the town of Triangle, Broome county, dismissing the plaintiff's complaint because the court did not have jurisdiction of the person of the defendant.
There was no allegation in the complaint as to residence; therefore, the defendant was not in a position to demur to the complaint under subdivision 1 of section 132 of the Justice Court Act before raising the question by his answer, as provided by section 147 of the Justice Court Act.
There was no question of waiver on the part of the defendant because he moved promptly for a dismissal on the ground that the court did not have jurisdiction of the parties upon the asserted facts.
Order and judgment affirmed, with costs.
McNamee, Crapser, Bliss and Heffernan, JJ., concur; Hill, P.J., dissents, with a memorandum.
I dissent and favor reversal. The appearance by the plaintiff with a request for a summons gave the Justice Court of Triangle jurisdiction so far as she was concerned. ( Hewitt v. Northrup, 75 N.Y. 506; Fisher v. Hepburn, 48 id. 41; Matter of Youker, 217 App. Div. 347.) The general appearance by the defendant, the filing of his answer, the request for a jury, the participation in the trial, were all acts which amounted to a waiver by the defendant of the question of jurisdiction of his person. ( Huber v. Ehlers, 76 App. Div. 602; Belden v. Wilkinson, 44 id. 420.) Section 148 of the Justice Court Act provides that if an objection is not taken either by demurrer or answer the defendant is deemed to have waived it. The words "except the objection to the jurisdiction of the court" used in that section necessarily mean the jurisdiction of the subject-matter of the action, because, if there has been a demurrer or an answer, the defendant has submitted himself to the jurisdiction of the court, and that subdivision of section 132 is eliminated. As the Justice Court had jurisdiction of the subject-matter of this action, to wit, a breach of contract where the damages asked were $126, the complaint should not have been dismissed, and I vote to reverse and to grant a new trial before the justice of the peace of the town of Triangle.