John W. Simmons Co. v. Costello

63 A.D. 428, 71 N.Y.S. 577, 1901 N.Y. App. Div. LEXIS 1629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1901
• Status: Published

Opinion

Jenks, J.:

.■ This action was begun in the City Court of Yonkers by service of a summons and a complaint. Four days thereafter the defendant demurred that the court did not have jurisdiction, and upon the following day the plaintiff served an amended complaint which contained this additional allegation : “ That the defendant is a resident of the City of Yonkers, N., Y.” The defendant thereupon demurred that the court had not jurisdiction of the action, and his demurrer was. sustained. The.point raised is that the amended complaint does not allege that “ At the time the action was commenced the defendant was a resident of the City of Yonkers or of a Town of Westchester County adjoining that city.” The allegation of residence is essential because the court is of limited jurisdiction. (Laws of 1893, chap. 416.) But I am of opinion that the allegation is sufficient. The amended complaint was a new pleading, served as a matter of right, and became the complaint in this action. (Pennimam, v. F. & W. Co., 133 N. Y. 442, 444, and authorities cited.) The allegation of the residence of the defendant is presumed to refer to his residence at the time of the commencement of the action, unless controlled by other allegations showing that a different date was intended. (Barker v. Cunard Steamship Co., 91 Hun, 495.) The pleading, which is the ordinary complaint in an action upon a promissory note made by the defendant, contains no allegation which disturbs this presumption.

The judgment is reversed, with costs.

All concurred.

Interlocutory judgment reversed, with ten dollars costs and disbursements.