Hyperlawhypertext legal database Pratt v. Pennsylvania Railroad 121 N.Y.S. 357

← Cases

Pratt v. Pennsylvania Railroad

121 N.Y.S. 357 Court N.Y. App. Term Decision date 1910-02-24 English

Contents

Majority

p. 357
(66 Misc. Rep. 183.)
PRATT v. PENNSYLVANIA R. CO.
(Supreme Court, Appellate Term.
February 24, 1910.)

Headnote

1. Courts (§ 189[1] )—Municipal Courts—Action Against Foreign Corporation-Jurisdiction.
A complaint in an action in the Municipal Court of the City of New York against a foreign corporation, which did not show that plaintiff was a resident of the state, was not for the cause demurrable, since the jurisdiction of the Municipal Court does not have to affirmatively appear in the pleading.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.[1] ]
2. Courts (§ 190[1] )—New York Municipal Court—Appeals—Decisions Reviewable—Ruling on Demurrer.
No appeal lies from orders of the New York City Municipal Court sus-: taining demurrers to a complaint upon which judgment has not been entered.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Leslie R. Pratt against the Pennsylvania Railroad Company. From orders sustaining demurrers to the amended complaints, plaintiff appeals. +-Dismissed.
Dismissed.
Argued before SEABURY, GUY, and WHITNEY, JJ.
Allen & Culver, for appellant.
Robinson, Biddle & Benedict (Norman B. Beecher, George R. Allen, and W. W. Cunningham, of counsel), for respondent.

Defendant demurred because it did not affirmatively appear upon the face of the complaint that plaintiff is a resident of the state. If not, the court has not jurisdiction. Code Civ. Proc. § 1780.

The jurisdiction of the Municipal Court does not have to appear in the pleadings affirmatively, any more than that of the Supreme -Court. Meuthen v. Eyelis, 33 Misc. Rep. 98 , 67 N. Y. Supp. 246 . The question of the plaintiff’s residence, therefore, does not have to appear in this instance. Herbert v. Montana Diamond Co., 81 App. Div. 212 , 80 N. Y. Supp. 717 . So far as the obiter dicta in O’Reilly v. New Brunswick Steamboat Co., 38 Misc. Rep. 112 , 59 N. Y. Supp. 261 , conflict, they have been overruled by the case last cited.

The demurrers should therefore have been overruled; but judgment

p. 358
has not been entered thereon, and the appeals have been prematurely taken. Watson v. Duryea, 133 App. Div. 233 , 117 N. Y. Supp. 348 .

The appeals should therefore be dismissed, with $10 costs.

Cases cited