Burns v. O'Neil

Headnote

County Court— allegation as to defendamfs residence, whm'e am, action is brought in — what sufficient — Allegations im pleadings — relate to time of beginning suit.

Appeal from a judgment of tbe Monroe County Court in favor of tbe plaintiff, and also from an order of said court denying a motion for a new trial on a case containing exceptions.

This was an action for assault and battery. Tbe action was commenced by the service of a summons to answer tbe complaint, a copy of which was stated in tbe summons to be annexed thereto. Tbe complaint averred that “ tbe plaintiff and defendant are residents of tbe county of Monroe.”

The court at General Term said: “At the close of the plaintiffs testimony, the defendant’s counsel moved for a nonsuit on two grounds, only one of which need be noticed, to wit, that the court had not jurisdiction of the action. The reason assigned was, that the complaint does not allege that the defendant was a resident of the county of Monroe, at the time of the commencement of the action. The statute gives County Courts jurisdiction in civil actions for the recovery of money, not exceeding $1,000, or of personal property not exceeding that sum in value, in which all the defendants are residents of the county in which the action is brought, at the time of its commencement. (Laws 1870, ch. 467, p. 1041, § 1.) The allegation in the complaint, as to the residence of the defendant, is sufficient. The complaint having been served with the sum mons when the suit was commenced, the averment in it that the plaintiff and defendant ‘are’ residents, etc., has reference to the time of the commencement of the suit. In Frees v. Ford (2 Seld., 176), cited by the appellant’s counsel, the declaration contained no allegation, whatever, as to the defendant’s residence.”