Clarkson v. Mittnacht — 6 Daly (N.Y.) 398

Majority

p. 398

William R. Clarkson et al. against George M. Mittnacht.

(Decided April 3d, 1876.)

Headnote

Under the provisions of the act of 1862 (L. 1862, ch. 484), in regard to the District Courts in the city of Hew York, providing that no person having a place . of business in that city shall be deemed a non-resident of it, non-residents having a place of business in the city are to be deemed, for purposes of suing in the District Courts, residents of the district in which their place of business is-situated.

p. 399

Where, therefore, the plaintiffs were partners, having a place of business in the first district, and two of them were non-residents, and one was a resident of the seventh district, and the defendant was a resident of the ninth district: Held, that the suit was properly brought by long summons in the first district, under § 4 of the District Court act of 1867 (L. 1867, ch. 344), providing that the action may be brought in the district in which one of the plaintiffs resides.

Appeal by defendant from a judgment of the First District Court in the city of New York, against him for $45 36, besides costs.

The facts are fully stated in the opinion.

Christian C. Moritz, for appellant.

Coffin c& Kimball, for respondents.

The action was commenced by long-summons. The plaintiffs are copartners, and have a place of business at No. 27 Pearl street, in the city of New York (first judicial district of the city of New York). Two of the plaintiffs, Clarkson and Warren, reside out of the city, and the other, Stratton, resides in 53d street (seventh judicial district). Defendant resides in Harlem (ninth judicial district). This action was commenced in the District Court for the first judicial district, upon the theory that the two plaintiffs, Clarkson and Warren, living out of the city, but having a place of business in the first judicial district, are residents of that district within the District-Court act of 1857, as amended in 1862 (Laws of 1857, ch. 344, section 4; Laws of 1862, ch. 484, amending section 4 of last named act).

Section 4 of the District Court act of 1857, provides that the action may be brought in the district in which one of the plaintiffs resides. The same section, as amended by the act of 1862, declares that no person who shall have a place of business in said city shall be deemed a non-resident under the provisions of that act.

Section 4 is entitled: “ In what district action to be brought,” and all the provisions of the section must be read as referring to the subject of bringing the suit in the proper

p. 400

district, as well as to other provisions of the act. The plain intent of the amendment of 1862, was to place non-residents doing business within the city on the same footing as residents, in all matters relating to the jurisdiction of the court over actions by or against them. If they are to be deemed residents of the city, it is with reference to their locale therein to determine the jurisdiction of the local court, since it is in the section relating to particular jurisdictions that they are classed as residents of the city ; but the only circumstance to fix the particular jurisdiction is the place of business, and that must be deemed their locality or place of residence, since they are declared to be residents.

If these views be correct, the action was properly brought by the plaintiffs’ firm in the first district, where their place of business was situated, although two of the firm were not residents of the city in fact, and one of them was an actual resident of another district. The judgment should be affirmed, with ■costs.

Charles P. Daly, Ch. J.,. and Yah Hoesen, J., concurred.

Judgment affirmed.^[1]

* A motion for leave to go to the Court of Appeals, was subsequently made at ■ a general term held by Charles P. Daly, Ch. J., Robinson and Van Brunt, JJ., and the motion denied, with costs; Van Brunt, J., delivering the opinion, and all the judges concurring.