Johnson v. Manhattan & Queens Traction Corp.

Majority

p. 753

Alfred Johnson, Appellant, v. Manhattan and Queens Traction Corporation, Respondent.

Second Department,

May 29, 1914.

Headnote

County Court—jurisdiction over railroad corporation under Laws of 1899, chapter 330 — process — pleading—facts once shown presumed to exist.

Under chapter 830 of the Laws of 1899, giving a County Court jurisdiction over a railroad corporation “ where any portion of the road operated by it is within the county,” jurisdiction arises from the residence of the defendant and not from the place of service of process, which may be made in any county of the State.

Hence, in an action against such a corporation operating within the county of Queens, service of process may be made in the county of Hew York, where said corporation had its principal office.

p. 754

Although the complaint did not aver that the defendant “ now ” operates a road in Queens county, the words “at all times herein mentioned” were sufficient within the rule that facts once shown are presumed to continue.

Appeal by the plaintiff, Alfred Johnson, from a judgment of the County Court of Queens county in favor of the defendant. entered in the office of the clerk of said county on the 29th day of January, 1914, upon the dismissal of the complaint at the opening of the trial by direction of the court. The dismissal was on the ground that defendant’s principal office being in the county of New York, and the summons and complaint not having been served in Queens county, the court had no jurisdiction of the defendant’s person.

G. J. Martin, for the appellant.

Robert S. Sloan, for the respondent.

As Laws of 1899, chapter 320 (amending Code Civ. Proc. § 341), gave jurisdiction over a railroad corporation “where any portion of the road operated by it is within the county,” such a railroad corporation is thereby made a resident of the county within which it operates. While the complaint does not aver that the defendant “now” operates a road in Queens county, the words “at all times herein mentioned” are sufficient within the rule that facts once shown are presumed to continue. When the jurisdiction of the County Court arises from the residence of the defendant, such a defendant may be served with process in any county of the State. (Code Civ. Proc. § 347.)

As the County Court’s jurisdiction here arose from the defendant’s residence, and not from the place of service of the summons, service in New York county gave jurisdiction.

. The judgment of the County Court of Queens county reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Burr, Carr and Stapleton, JJ., concurred.

Judgment of the County Court of Queens county reversed and new trial ordered, costs to abide the event.