Majority
p. 693Oliver H. Perry, Resp’t, v. The Erie Transfer Co., App’lt. (City Court of New York, General Term, Filed October 15,1891.)
Headnote
Jurisdiction—Non-resident—W aiver.In a transitory action where the complaint does not show and the answer does not object that the defendant is a non-resident the want of jurisdiction is not an issue to be tried, but is waived.
Appeal from judgment in favor of plaintiff directed by trial judge.
A. W. Kent, for app’lt; Strong & Cadwalader, for resp’t
It does not appear by the complaint, nor is it objected to in the answer, that the plaintiff was at the time the action was commenced a resident of New Jersey. Such being the case, the want of jurisdiction was not an - issue to be tried. It was waived. Although the defendant is a foreign corporation; the action is transitory, and but for the non-residence of the plaintiff the court would have had jurisdiction of both subject matter and parties. The objection, or grounds upon which it is based, ought to have appeared in some form by the pleadings.
The cause of action was clearly proved and verdict properly directed. It follows that the judgment appealed from must be affirmed, with costs. ■ ’ .
Newbur&er, J., concurs.