Larocque v. Harvey

10 N.Y.S. 576, 64 N.Y. Sup. Ct. 366, 32 N.Y. St. Rep. 415, 57 Hun 366, 1890 N.Y. Misc. LEXIS 864

Opinion

Landon, J.

The justice of the peace had no jurisdiction of the person of the defendant. Houghtaling v. Groesbeck, 51 N. Y. 673. Section 2869, Code Civil Proc., provides: “An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county.” There are certain exceptions, not material here. A justice of the peace has the civil jurisdiction given him by statute, and no other. Section 2861. Upon appeal, errors in fact not affecting the merits, and not within the knowledge of the justice, may be determined upon affidavits. Section 3057. The affidavit of defendant, showing the residence of the parties, was therefore competent, and properly received. Griffin v. Norton, 5 N. Y. St. Rep. 812; Vallen v. McGuire, 2 N. Y. Supp. 381. The plaintiff cites section 3064. That section is applicable to a defendant in default who seeks to open it. In such case, he appeals to the discretion and favor of the court. Here the defendant asks no favor. He denies the jurisdiction of the justice. If the facts deprived the justice of jurisdiction, it was the defendant’s right to show them. In Hoffman v. Barton, 14 N. Y. St. Rep. 506, cited by plaintiff, it does not appear that such facts were shown. The fact that the defendant did not appear in response to a summons which the justice had no jurisdiction to issue, was no waiver of his right to his subsequent objection to an unauthorized judgment. Judgment reversed, with costs. All concur.