Frees v. Blyth — 99 A.D. 541

Majority

p. 541

Thomas H. Frees, Appellant, v. Charles A. Blyth, Respondent.

Headnote

City Court of New York—it is only a local statutory court of inferior jurisdiction — an affidavit of service without venue is a nullity — a denial by reference to numbered paragraphs of the complaint.

The City Court of the city of New York, although enumerated as a court of record in section 2 of the Code of Civil Procedure, is only a local statutory court of inferior jurisdiction, and the facts necessary to confer jurisdiction upon such court will not be assumed but must be made to appear affirmatively.

An affidavit of the service of a summons in an action brought in that court, which affidavit does not specify the venue, is a nullity and is fatal to the validity of a judgment entered in the action upon the defendant’s default.

An answer which denies the allegations of the complaint in hcec verba, as “ alleged or mentioned in the * * * paragraph * * * of the plaintiff's complaint," referring to such paragraph by its number, though not beyond criticism as containing a negative pregnant, may be held sufficient on an appeal from a judgment dismissing the plaintiff’s complaint.

Appeal by the plaintiff, Thomas H. Frees, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 11th day of January, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Herman H. Baker [Charles W. Leeman with him on the brief], for the appellant.

John M. Rider, for the respondent.

This is an action upon a judgment recovered in the City Court of Yew York upon a default. That court, though enumerated as a court of record in section 2 of the Code of Civil Procedure, “ is only a local statutory court of inferior jurisdiction.” (McCann v. Gerding, 29 Misc. Rep. 283 .) “ The facts necessary to the jurisdiction will not be presumed, but must be made to appear affirmatively.” (Beaudrias v. Hogan, 16 App. Div. 38 . See, too, Gilbert v. York, 111 N. Y. 544 .) It appears from the record of the judgment roll that the affidavit of the service of the summons, with notice, is without venue. It is, therefore, a nullity. (Thompson v. Burhans, 61 N. Y. 52 , 63; Rogers v. Pell, 154 id. 518, 529; Saril v. Payne, 4 N. Y. Supp. 897 ; Babcock v. Kuntzsch, 85 Hun, 33 .) The question of any amendment (Cook v. Whipple, 55 N. Y. 150 , 166) is not in this case.

Even though the rule, that the jurisdiction of such a court is never presumed, applies only to questions of jurisdiction of the subject-matter, and that in other respects the rule as to courts of general jurisdiction obtains, as some authorities have it (17 Am. & Eng. Ency. of Law [2d ed.], 1083), yet this will not avail the appellant. In Smith v. Central Trust Co. ( 154 N. Y. 333 , 341) it is held that the presumptions in support of superior courts of general jurisdiction only apply to such jurisdictional facts as to which the record is silent, and not otherwise, the court saying: “ When it affirmatively appears, however, that any essential step was omitted, the presumption in favor of jurisdiction is destroyed and a presumption against jurisdiction at once arises.”

The answer of the defendant denies the allegations of the complaint indices verba, as “alleged or mentioned in the * * * paragraph * * * of the plaintiffs complaint,” referring to such paragraph by its number. Though not beyond criticism as containing a negative pregnant, it may be held sufficient, certainly on appeal. (Donovan v. Main, 74 App. Div. 44 ; Wall v. Buffalo Water Works Co., 18 N. Y. 119 ; Stuber v. McEntee, 142 id. 200 .)

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.

Cases cited

McCann v. Gerding 29 Misc. Rep. 283 N.Y. App. Term 1899-10-25 p. 541
Beaudrias v. Hogan 16 App. Div. 38 N.Y. App. Div. 1897-04-13 p. 541
Gilbert v. York 111 N. Y. 544 N.Y. 1888-12-11 p. 541
Thompson v. Burhans 61 N. Y. 52 N.Y. Comm'n App. at 63 p. 541
Cook v. Whipple 55 N. Y. 150 N.Y. 1873-11-25 at 166 p. 541
Smith v. Central Trust Co. 154 N. Y. 333 N.Y. 1897-11-23 at 341 p. 541
Donovan v. Main 74 App. Div. 44 N.Y. App. Div. 1902-06-19 p. 541
Wall v. Buffalo Water Works Co. 18 N. Y. 119 N.Y. p. 541