Donnelly v. Woolsey — 39 N.Y. St. Rep. 748

Majority

p. 748

James Donnelly, Resp't, v. Edward J. Woolsey, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Jurisdiction—County court—Appearance.

Where a defendant appears generally and demands a copy of the complaint in an action in a county court, this constitutes a waiver of objection to the jurisdiction of the court, and the county court has jurisdiction even if both parties are not residents of the county.

Motion for reargument For opinion on former hearing see 38 R. Y. State Rep., 39.

S. B. Noble, for motion; Knevals & Perry (Edward J. Knauer, of counsel), opposed.

—The motion for a reargument should be denied.

The defendant leased a farm to the plaintiff with a right to compel him to vacate on seventy days notice. If such notice was given and the farm given up the damages were to be appraised by arbitration. The lease was an extraordinary one in its provisions and was full of possible litigation.

The case on the trial developed serious questions of fact, and these questions have been settled by a jury. The action was commenced in the county court by the service of a summons only. The defendant appeared generally and demanded a copy of the complaint

This gave the county court jurisdiction even if both parties were not residents of Queens county, where the venue was placed. The general appearance before the framing and service of the complaint did not render the general appearance less effective. The court had jurisdiction of the cause of action and of the parties if residents.

The summons gave jurisdiction of the person if accepted and assented to; and the general appearance was a waiver of all objection.

The court of appeals has decided the point presented in various cases. ■ Clapp v. Graves, 26 N. Y., 418 ; Jones v. Jones, 108 id., 415; 13 N. Y. State Rep., 838.

The motion should be denied, with ten dollars costs.

Dykman and Pratt, JJ., concur.