Osburne v. Gilbert

52 Barb. 158, 1868 N.Y. App. Div. LEXIS 98

Opinion

By the Court, Marvin, J.

Clapp v. Graves, (26 N. Y. Rep. 418,) is decisive of this case. The only difference in the two cases is that in that case the issue was joined, nothing being said as to the residence of the defendant; in this case the attorney for the defendant said that the defendant resided in Allegany county; but he did not plead that fact, nor would he make an affidavit of it; and the justice very properly said that there was no evidence of the fact before him; that he would decide when there was. The defendant, by answering the complaint, waived any defense on the ground of residence, and thus gave the justice jurisdiction of his person, and the cause of action was one proper for a justice’s court. The question raised is fully discussed and decided in Clapp v. Graves, and there is no occasion for any further discussion.

The judgment must be affirmed.

Daniels, Marvin and Barleer, Justices.]