Kelly v. Mullany — 2 N.Y. Super. Ct. 205

Majority

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Malachi Kelly versus James R. Mullany.

Headnote

To an action of debt on a judgment obtained against the defendant, “in the term “ of February, 1827,” in the Supremo Court, “ then holden at the Capitol, in “ the City of Albany,” the defendant pleaded in abatement to the jurisdiction of this Court, that “ the cause of action, if any, accrued to the plaintiff in the “ County of Albany,” &c. Upon demurrer to this plea, it was held, that if the plea were correct in point of principle, (upon the ground that the action of debt on judgment, is a local action;) it was, nevertheless, insufficient, because it did not show that the record of the judgment was filed in ¡Albany.

This was an action of debt on a judgment. The declaration set forth, that the plaintiff, “ in the term of February,” in the year 1827, “in the Supreme Court of Judicature of the People of the “ State of New-York,” “ then holden at the Capitol, in the City of “ Albany, by the consideration and judgment of said Court, re- “ covered against the defendant six hundred and sixty dollars and “ seventy-seven and a half cents;” “ as by the record and pro- “ ceedings thereof, remaining in the said Supreme Court, more “ fully appears,” &c. . •

The defendant pleaded in abatement, to the jurisdiction of this Court, “ that the said City of Albany, in the declaration of the “ said plaintiff mentioned, is in the County of Albany;—the same “ being one of the counties of the State of New-York, within “ which, the said Supreme Court have cognizance of all pleas “ and actions;” “ and that the cause of action in the said de- “ claration mentioned, if any,-accrued to the said plaintiff in the “ said County of Albany, and not in the City and County of New- “ York, or elsewhere out of the said County of Albany.” Wherefore, the defendant prayed judgment, if “ the said Superior Court “ will, or ought, to take cognizance of the plea aforesaid,” &c.

To this plea, there was a demurrer, and for special causes, the plaintiff assigned the following: First, that the plea did not truly set forth the style and title of the said Supreme Court. II. That it did not state, that the cause of action accrued to the plaintiff out of the jurisdiction of this Court. III. That it did not state, that the said Supreme Court hath sole or exclusive cognizance of

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actions arising in the said County of Albany. IV. That the proceedings in this-cause being by plaint, the plea ought to have prayed judgment, if the Court would lake cognizance of the plaint; whereas it hath prayed judgment, if the Court would take cognizance of the plea aforesaid. V. That the plaintiff hath not by affidavit proved the truth of said plea, or shown any probable matter to induce the Court to believe that it is true.

The defendant having joined in the demurrer, Mr. O'Conner, for the plaintiff, contended,

I. That the special exceptions to the plea were well taken. It is an established rule, (he said,) that objections to the jurisdiction of a Superior Court of record must be pleaded, and in such form as to be free from all exception. (1 Chit. Plea. 427. Cowp. R. 172, Mostyn v. Fabrigas.) The style of the Court, which has jurisdiction, must be truly set forth; for, in order to repel the jurisdiction of this Court, a' more proper and sufficient jurisdiction must be shown. [1 Chit. Plea. 432.]

Here the plea neither states, that the cause of action arose out of the jurisdiction of this Court, nor that the jurisdiction of the Supreme Court is exclusive. Non constat, but the two Courts have concurrent jurisdiction over the subject matter. In addition to these objections, the prayer is totally defective. [Attwood v. Davis, 1 Barn. & Al. 172. Note to 2d Saund. 209.]

II. The truth of the plea should have been proved by affidavit; for a plea in abatement to the jurisdiction of a Superior Court of record, is not favoured in law, and all formal objections may be ¡taken to it. The defendant should therefore have complied strictly with all the requirements of the law, relative to dilatory, pleas. [1 R. L. 524, ss. 23. 1 Chit. Plea. 434. 3 Caines’ R. 100, Robinson v. Fisher.]

III. 'The plea is bad in. substance. The Supreme Courtis endowed with legal ubiquity. Its judgments may be pleaded with¿out a venue, and are by intendment of law, in no respect confined

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to any particular county. It does not even appear, that the record is filed in Albany; non constat, but that it is here, in the City of New-York; for the records of the Supreme Court are filed as well here as at Albany. If there were an averment'in the plea, that the record is filed in Albany, then the case might be brought within the scope of some of the English authorities. But if debt on judgment is a local action, in strictness, still the reasons why it is made so in England, do not apply to the State of New-York. Our Supreme Court lias offices for its Clerks in three distinct counties ; its sessions are held in different places ; and in judgment of law, a record of the Supreme Court is no more confined to Albany, than it is to Utica, or the city of New-York.

As the defendant can only bring himself within the scope of his own authorities by inference, this Court will not draw such inference against its own jurisdiction. On the other hand, it will infer, unless the contrary is clearly pointed out by the plea, that the record of the judgment on which this action is brought, is filed in the City and County of New-York. Why should the Court infer that the record is filed at Albany I It by no means follows, that because the judgment was rendered while the Supreme Court was sitting at Albany, that therefore the record is filed there. It may be, and probably is, filed in the City of New-York. If it is not, the defendant should have averred, that fact in his plea, that the plaintiff might have taken issue thereon, if it be material. It was not necessary to allege where the record was filed, in the declaration ; for (he Court will not oust itself of its jurisdiction by inferring a fact, which the defendant should have distinctly pleaded, if he intended to rely upon it. The plea, therefore, is wholly insufficient.

Mr. James Oswald Grim, contra, for the defendant.

I. The action of debt on a judgment is a local action, and this Court, therefore, cannot entertain jurisdiction of the present suit. It must be brought in the place where the judgment was recovered. [Hall v. Winkfield, Hobart R. 195.]

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The first question here is, where is the record of the'judgment on which this suit is brought 1 In the absence of any thing m the declaration to the contrary, it will be inferred, that the record is filed, where the judgment was rendered. In this case, the declaration states, that the judgment was rendered at Albany, and the record must be there also, as a matter of course. The Court cannot infer, that it is any where else, because prima facie, that is the proper place for it. “ In stating a matter of record, no venue “ is necessary, as the record must be presumed to be where the “ Court is.” [Chit. Plea. Vol. 1, 281. 1 Vent. 246.] This being the legal intendment, if the record, in point of fact, is filed in the city of New-York, the plaintiff should have replied that, by way of a new assignment. “ Although a replication must not “ depart from any material allegation in the declaration, yet when “ there is an evasive plea, the plaintiff may avoid the effect of it, “ by restating the injury for which he meant to declare, with “ more particularity and certainty, consistently, however, with “ the more general complaint in the declaration.” [1 Chit. Plea. 602.]

The authority of the case of Hall v. Winkfield has often been recognized by the Courts of this country. In the case of Barracliff’s executors v. Griscom’s administrators, (1 Cox, New-Jersey R. 193.) the Court say, “ in actions of this nature, the venue must “ be laid in the county where the judgment was obtained.” Indeed, the rule is well settled, that “ in an action of debt on the judg- “ ment of a Court of record, the venue must be laid in the coun- “ ty where the record is.” [1 Chit. Plead. 272, Barnes v. Kenyon. 2 John. Cas. 381. 9th J. R. 259. 7 J. R. 318.] By the 5th sec. of the act establishing this Court, power is given them to try and determine all transitory actions, “ and all local actions aris- “ ing within the City and County of New-York.”

If it be conceded, that the present is a local action, how can the plaintiff escape from the force' of this plea 1 If it be good in substance, it is sufiScient in form; because it expressly avers, that the plaintiff’s cause of action accrued in the County of Albany, and not in the City and County of New-York. It is admitted, therefore, that the record is in existence, and the place where it is to

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be found, is clearly pointed out by the plea ; for if the cause of action accrued in Albany, in an action of debt on judgment, it must be because the record of that judgment is filed in that County. If the plaintiff' intended to deny the truth of the plea, he should have traversed the false allegations; but by demurring, he has admitted, that the cause of action did not accrue to the plaintiff'in the City and County of New-York. Whence, then, does this Court, in an action strictly local, derive its jurisdiction over a judgment obtained out of the County of New-York ?

As to the special causes of demurrer, if the defendant is right in the general principle upon which his plea is founded, they cannot be sustained. The title of the Supreme Court is given in the very words of the act, and at all events the description is sufficiently specific. The requirements of the second cause, are complied with by the plea; for it states, that the cause of action accrued at Albany. Now as Albany is beyond the jurisdiction of this Court, it follows that the cause of action accrued out of its jurisdiction.

As to the third cause, it was not necessary to state, that the Supreme Court had exclusive jurisdiction over actions arising in the County of Albany: for this Court might have no cognizance of a suit brought in it, and yet the Common Pleas might have cognizance over the same suit by express statute.

In this case, there was no necessity to prove the plea by affidavit ; the statute merely requires probable cause, and there is no necessity for an affidavit, where the plea is for matter apparent on the record. [Tidd’s Prac. 588. 2 Sellon’s Prac. 272.] But if an affidavit were necessary, the objection cannot be taken on demurrer ; it should be by motion. The affidavit forms no part of the record, and it may be made by a third person; the want of it, therefore, is no objection upon the face of the pleadings.

The proper forum for this matter, is the Supreme Court, or the Common Pleas, for the County of Albany. The plaintiff is under no necessity of appealing to this tribunal, which was not established for the purpose of trying any local actions, except those originating within the very jurisdiction, which is given to this Court by law. A.11 transitory actions may be brought here, of course, but those actions, which ought to be confined to their own proper

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tribunals, cannot be brought here, for any peculiar reasons of convenience.

This was an action of debt on a judgment in the Supreme Court. The declaration set forth, that the plaintiff, by the consideration of the said Court, “ then holden at the Capitol, in the city of Albany,” recovered judgment against the defendant, &c. To this declaration, the defendant pleaded in abatement to the jurisdiction of this Court: to which plea there was a demurrer.

It is contended, on the part of the defendants, that the Court has not jurisdiction in the present case, because it appears by the declaration, that the action is founded on the record of a judgment in the Supreme Court, obtained at Albany; that the record must be presumed to be filed there, and that the action is therefore local.

Assuming, for the purpose of disposing of the case, that an action of debt on a judgment is local, and must be brought in the county where the record is filed; I am of opinion, that it does not sufficiently appear in the pleadings in this cause, that the record of the judgment in question is filed in Albany. The declaration states that the plaintiff, in the term of February, 1827, in the Supreme Court, then holden at the Capitol, in the City of Al- “ bany,” recovered judgment against the defendant, as by the record thereof “ remaining in the said Supreme Court, before the “ Justices thereof,” more fully appears.

The record of all judgments obtained in the Supreme Court may be filed in New-York, Albany, or Utica; and for any thing averred in this declaration, the record, on which this action is founded, may be filed in the Clerk’s office in this city. It is not to be inferred, that it is filed in Albany, because it is stated, that the judgment was entered there. Such inference would be a necessary one, where by law the records of the judgments of a Court can be filed only where the Court sits; as in the case of the Courts of Common Pleas: but it cannot arise as to judgments in the Supreme Court, which has general jurisdiction, and in which all records may by law be filed, in either of the_ places designated for the holding of its regular terms.

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If the fact, then, in the present case, be that the record in question is filed in Albany, the defendant should have averred that fact distinctly in his plea. The averment, that the cause of action occurred to the plaintiff in the County of Albany, and not in the City and County of New-York, nor elsewhere out of the County of Albany, is not sufficiently certain; as it is an averment equally applicable to transitory actions, (which in fact may have arisen in Albany,) and actions, which are local in their nature. There must, therefore, be judgment of respondeas ouster.

[C. O’Connor, Att'y for plff. J. O. Grim, Att'y for deft.]