Routenberg v. Schweitzer — 61 N.Y.S. 84

Majority

p. 84

(29 Misc. Rep. 653.)

ROUTENBERG v. SCHWEITZER.

(Supreme Court, Appellate Term.

November 29, 1899.)

Headnote

Municipal Courts—Appeal—Record—Letter oe Justice.

On an appeal from a judgment of the municipal court, a letter written by the justice, stating that he drew a certain conclusion of fact from the evidence, will not be considered, where it is presented for the court’s consideration after the appeal has been argued and submitted.

Appeal from municipal court, borough of Manhattan, Fourth district.

Action by Louis Routenberg against Morris Schweitzer. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVENTRITT, JJ.

A. S. Weltfisch, for appellant.

Ashley, Emley & Rubino, for respondent.

This judgment must be reversed for lack of proof of the requisite fact of .the defendant’s residence within jurisdiction of the court. Upon the return of the summons the defendant formally insisted that he was a nonresident, and presented affidavits containing positive allegations that at that time, and for the preceding 11 years, he had been a resident of Greenville, S. C. Counter affidavits were submitted by the plaintiff, whereupon the justice found “that the defendant had a place of business in this city.” This finding will not satisfy the jurisdictional requirements. “Residence” and “place of business” are not synonymous. The respondent evidently recognized this; for, after the appeal had been argued and submitted, he presented for our consideration a letter which he had procured from the justice, a copy of which had been served on the appellant’s attorneys, to the effect that the foregoing statement from the record was incomplete, and that the justice had found as a fact from the proof that the appellant was a resident of the county. This letter must be disregarded, as we cannot go behind the return or amend it in this informal manner. There is at best a grave question whether the plaintiff’s affidavits, considered alone, establish residence. They contain no direct allegation of fact. These may perhaps be supplied on a rehearing, although it would probably be advisable to determine the question of jurisdiction, in disputed cases,

p. 85

on oral testimony, where opportunity for cross-examination would be afforded. For the jurisdictional defect referred to, the judgment must be reversed. Tyroler v. Gummersbach, 28 Misc. Rep. 151 , 59 N. Y. Supp. 266 , 319.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.