McKee v. Oliver

New York Court of Common Pleas

McKee v. Oliver

2 Daly 381

CourtNew York Court of Common Pleas

DecidedJune 15, 1868

StatusPublished

Cited by1 cases

This text of 2 Daly 381 (McKee v. Oliver) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKee v. Oliver, 2 Daly 381 (N.Y. Super. Ct. 1868).

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Opinion

By the Court,—Brady, J.

By the amendment of the fourth Section of the Act of 1857, in relation to the District Courts of this city, passedin 1862 (Laws of 1862, p. 970, § 20), it is provided that when the action is against the defendant or defendants, not residing in the city and county of New York, it must be brought in the district in which the plaintiff or one of the plaintiffs reside.

It is also provided by'Jhe forty-fifth section of the Act of 1857 (Laws of 1857, p. 707), that when it is objected at the trial, and appears by the evidence, that the action is brought in the wrong district, judgment that the action be dismissed with •costs, without prejudice to a new action, shall be rendered.

It is not necessary that the objection be taken by answer. It is sufficient that it appears to be warranted by the evidence on the trial, and is then taken. The statute, on such proof and objection, becomes imperative, and the judgment of dismissal must be rendered (Haulenbeek v. Gillies, 7 Abb. Rep. 421; Dean v. Cannon, 1 Daly Rep. 34).

It having appeared that the defendants were not residents of this city, and that the plaintiffs were residents, but not of the district in which this action was brought, and an objection to the jurisdiction having been taken, the justice had no authority to render the judgment given, and it must be reversed.

Judgment reversed.

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By the Court,—Brady, J.

By the amendment of the fourth Section of the Act of 1857, in relation to the District Courts of this city, passedin 1862 (Laws of 1862, p. 970, § 20), it is provided that when the action is against the defendant or defendants, not residing in the city and county of New York, it must be brought in the district in which the plaintiff or one of the plaintiffs reside.

It is also provided by'Jhe forty-fifth section of the Act of 1857 (Laws of 1857, p. 707), that when it is objected at the trial, and appears by the evidence, that the action is brought in the wrong district, judgment that the action be dismissed with •costs, without prejudice to a new action, shall be rendered.

It is not necessary that the objection be taken by answer. It is sufficient that it appears to be warranted by the evidence on the trial, and is then taken. The statute, on such proof and objection, becomes imperative, and the judgment of dismissal must be rendered (Haulenbeek v. Gillies, 7 Abb. Rep. 421; Dean v. Cannon, 1 Daly Rep. 34).

It having appeared that the defendants were not residents of this city, and that the plaintiffs were residents, but not of the district in which this action was brought, and an objection to the jurisdiction having been taken, the justice had no authority to render the judgment given, and it must be reversed.

Judgment reversed.

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Bluebook (online)

2 Daly 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-oliver-nyctcompl-1868.

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