Pearce v. Bogert — 10 Daly (N.Y.) 277

Majority

p. 277

Stephen A. Pearce, Appellant, against Henry L. Bogert et al., Respondents.

(Decided December 5th, 1881.)

Headnote

To authorize a justice of a district court in the City of New York to dismiss a complaint on the ground that, one of the defendants being a nonresident, the action should have been commenced by a short summons instead of the ordinary summons, proof of the fact of such non-residence is requisite; and if such proof is not given until after answering, the objection is waived.

Appeal from a judgment of the district court in the City of New York for the Third Judicial District.

The facts are stated in the opinion.

C. J. G. Hall, for appellant.

Henry L. Bogert, for respondents.

On the return day of the summons certain of the defendants appeared and objected to the jurisdiction of the justice, on the ground that the action had been commenced by long summons, and that this was improper because three certain other defendants (who did not put in an appearance) were not residents of the City of New York. No affidavit of such non-residence was produced by the parties making the objection, and the fact of non-residence did not appear. The justice therefore properly overruled the objection. The objecting defendants thereupon filed answers in which the objection of non-residence was not taken, and an adjournment was had. On the adjourned day the objecting defendants came into court with an affidavit that Mr. Kenyon was a non-resident, and moved to dismiss on that ground. The motion was granted. This was error. It was too late after pleading to take the objection in question. It had not been regularly taken before answer, because it was not then

p. 278

based on any proof of the fact of non-residence, and defendants having pleaded, waived the defect. It was not a question of jurisdiction of the cause of action, which could have been raised at any time, but of irregularity in the form- of summons, objections as to which are always waived by pleading before objecting. If a defendant wishes to avail himself of irregularities in the form of summons, he must object before pleading (Andrews v. Thorp, 1 E. D. Smith, 615), and must also make the fact of non-residence appear. To warrant the justice in dismissing a complaint on that objection, he must have proof, just as he would réquire in the first place to authorize him to issue a short summons to an alleged non-resident (Sperry v. Mayor, 1 E, D. Smith, 361).

The judgment should be reversed with costs.

Van Hoesen, J., concurred.

Judgment reversed, with costs.