Miller v. Katz

234 A.D. 870

Opinion

Order of Appellate Term and judgment of the City Court, county of Kings, reversed on the law and the facts and a new trial ordered, costs to abide the event. The answer of the defendants denied the allegation of the complaint that all of the defendants were residents of Kings county on the date of the commencement of the action, and at the trial plaintiffs failed to prove that the defendants against whom the action was continued were all residents of Kings county on the 15th day of November, 1926, when the action was commenced. There was no waiver, express or implied, and hence the court acquired no jurisdiction of the persons, and defendants made a motion at the close of the plaintiffs’ case, as soon as it was known that plaintiffs had failed to give such proof, for a nonsuit on that ground, and renewed the motion at the close of the whole ease. (See Kortwellyeszsy v. Manhattan Cooperage Co., 162 App. Div. 285; Cunneen v. Kennedy, 170 id. 908; Landers v. Staten Island R. R. Co., 53 N. Y. 450; O’Connor v. City of New York, 191 id. 238.) Lazansky, P. J., Carswell, Scudder, Tompkins and Davis, JJ., concur.