Bennett v. Weaver — 3 N.Y.S. 776

Majority

p. 776

Bennett v. Weaver.

(Supreme Court, General Term, Fourth Department.

November, 1888.)

Headnote

• Venue in Civil Cases—Transitory Actions—Justices op the Peace.

Code Civil Proc. N. Y § 3869, provides that “an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except, * * * where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action. ” Held, that the latter provision is not exclusive, and that a j ustice of the town where plaintiff resides has jurisdiction, though defendant is a non-resident, and was in another town in the same county when the action was commenced.

Appeal from Broome county court.

Action by Albert Bennett against George S. Weaver, before a justice of the peace. Plaintiff and the justice both resided in the town of Triangle, Broome county. Defendant was not a resident of that county, but the summons was served upon him in a town adjoining Triangle, and in the same county. Defendant appealed to the county court from a judgment for plaintiff. The judgment was affirmed, and defendant now appeals to this court.

Argued before Hardin, P. J., and Martin and Follett, JJ.

Charles Clinton, for appellant. W. D. Edmister, for respondent.

The statute applicable to the question involved in this appeal ,declares that “an action must be brought before a justice of a town or city •wherein one of the parties resides, or a justice of an adjoining town or city in ¡the same county, except, * * * where the defendant is a non-resident of ■¡the county, it may be brought before a justice of the town or city in which ihe is at the time o'f the commencement of the action.” Code Givil Proc. § 2869. The question is whether, under this statute, a justice acquires jurisdiction in an action against a non-resident defendant; where the action is brought before a justice of the town where the plaintiff resides, and not in the town in which the defendant is when the action is commenced. The first provision of the statute is one of limitation only. It limits the jurisdiction of a justice to an action where one of the parties resides in the same town with him, or in an adjoining town. The exception to this limitation is that, where the defendant is a non-resident, the action may be brought in tlie town where he is at the time. The contention that this exception restricts the jurisdiction of a justice to the case therein mentioned, cannot be sustained. It in no way restricts or diminishes his jurisdiction, but, on the contrary, it narrows the limitation of his jurisdiction, and thus enlarges it by extending it to an additional case. This statute contains no provision giving exclusive jurisdiction to a justice of the town where the defendant may be when the action is commenced, nor does the language employed justify such' a construction. The statute is.plain, and there can, we think, be no doubt but that, when an action is brought before a justice of the town where one of the parties resides, he has jurisdiction, even though the defendant be a non-resident, and m another town in the same county when the action is commenced. We are of the opinion that the decision of the learned county judge was right, and that the judgment appealed from should be affirmed, with costs. All concur, except Follett, J., not voting.