Curran v. Arp — 141 A.D. 38

Majority

p. 38

Mary Ann Curran, Respondent, v. Max F. Arp, Appellant, Impleaded with Rudolph Arp, Defendant, Doing Business under the Partnership Name of M. F. Arp & Bro.

(Appeal No. 1.)

Second Department,

November 18, 1910.

Headnote

Court—jurisdiction" of County Court — complaint — allegation as to residence óf defendant — demand for judgment.

As the County Court is one of limited jurisdiction, the complaint must allege the necessary jurisdictional facts. ■ / '

Where the complaint in an action in the County Court brought under subdivision 3 of section 340 of the Code of Ciivil Procedure is verified before the service of the summons,, an allegation that the defendants, are residents of the. ' county is equivalent to an allegation that they are residents at the time of the commencement of'the action.” •

A demand-for judgmentíagáinst “ each” and ‘.‘both ” of two defendants for the ; sum of §2,000 should not be construed to demand judgment for §6,000 so as to oust the court of jurisdiction, but should be taken as-demanding judgment for.§2,000 against each and both of the defendants.

• ■ Appeal by the defendant. Max F. Arp,; from aii order of the County Court of Kings county, entered in the office of the clerk of said county on the ‘9th day of May, 1910.

p. 39

Francis A. McGlosTcey,íor the appellant.

Francis H. Stoddard, Jr. [George F. Hurd with him on the brief], for the respondent.

This action is brought in the County Court of Kings county, and the appeal is from an order of that court denying appellant’s motion for .judgment on the pleadings. Inasmuch as the County Court is a court of limited jurisdiction, the complaint must contain averments of the necessary jurisdictional facts, including that of residence. (Const. art. 6, § 14; Code Civ. Proc. § 340, subd. 3; Gilbert v. York, 111 N. Y. 544 .) The complaint alleges that “ the defendants are residents of the County of Kings.” Criticism is made upon its sufficiency, because it does not contain the additional words which appear in the statute (Code Civ. Proc., supra) “ at the time of the commencement of the action.” An action is commenced by the service of a summons or the voluntary general appearance of the defendant therein. (Code Civ. Proc. §§ 416, 424.) For certain other purposes not necessary here to consider, it may be deemed to be commenced even before either, act. If, as is usually the case, a complaint is verified before the actual service of the summons, or the appearance of the defendant, it would be impossible strictly and literally to comply with the Code provision, since it would involve a statement respecting a future condition. But allegations of time in a complaint are presumed to refer to the conditions existing when the action was begun unless controlled by other allegations showing that a different date was intended. (Barker v. Cunard Steamship Co., 91 Hun, 495 ; affd., 157 N. Y. 693 .) When subsequently to the service of the summons an amended complaint was served, which contained an allegation that the defendant is a resident of the city of Yonkers, it was held that it was equivalent to an allegation that at the time of the commencement of the action he was such resident. (Simmons Company v. Costello, 63 App. Div. 428 .) Ex necessitate an allegation in a complaint, verified before the service of the summons, that the defendants are residents of the county of Kings, must be equivalent to an allegation that at the time of the commencement of the action they are such residents,. (Burns v. O'Neil, 10 Hun, 494 .)

p. 40

Further criticism is. riiade upon the complaint because in the prayer .plaintiff demands- judgment against “each” and- “both” of the defendants for tire sum of $2,000. Defendant; contends .that this is equivalent to demanding judgment for three amounts of $2,000 each, and that for that reason the County Court has no jurisdiction. A' fair -construction- of the complaint is That-plaintiff seeks’tó recover but -one sum, and that $2jOO0. ‘ -If-wetranspose-the word's of --tlie'pritygr's‘d= that it. read's-“ the plaintiff demands. judg-r merit for the sum of $2,000 against each and-both Of the defendants-,” this is perfectly clear.' =-. ,,.r ,

The-'Order hinst he- affirmed. :

Hiesohbeep,.P, J., Woobwaed, Thomas and.E-ipn, J J., concurred-..

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.

Cases cited

Gilbert v. York 111 N. Y. 544 N.Y. 1888-12-11 p. 39
Wilson v. Webber 157 N. Y. 693 N.Y. 1898-11-22 p. 39
John W. Simmons Co. v. Costello 63 App. Div. 428 N.Y. App. Div. 1901-07-25 p. 39