Janos v. Samstag — 65 N.Y.S. 223

Majority

p. 223

JANOS et al. v. SAMSTAG et al.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

1. Appeal and Error—Record—Residence of Defendants.

Where the residence of defendants within the jurisdictional limits of the court does not affirmatively appear upon the record, judgment for plaintiff dependent on such residence will be reversed.

2. Costs on Appeal.

Where the objection that the residence of defendants does not appear of record was first raised on appeal, no costs will be awarded in directing a new trial.

Appeal from municipal court, borough of Manhattan.

Action by Jacob Janos and others against Henry F. Samstag and others. From a judgment in favor of plaintiffs, defendants appeal.

Reversed.

Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.

Rose & Putzel, for appellants.

I. Callahan, for respondents.

There is neither allegation nor proof with respect to .the residence of the defendants. As the jurisdiction of the court depends upon the residence of the defendants within the territorial limits of the city of New York as now constituted, and as such jurisdiction must affirmatively appear upon the record, it follows that the judgment herein must be reversed. Tyroler v. Gummersbach, 28 Misc. Rep. 151 , 59 N. Y. Supp. 266 . As, however, the question was first raised on appeal, no costs will be awarded in directing a new trial. Willis v. Parker (Sup.) 62 N. Y. Supp. 1078 .

Judgment reversed, and new trial ordered, without costs.