Pratt v. Pennsylvania Railroad

66 Misc. 183, 121 N.Y.S. 357

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1910
• Status: Published

Opinion

Per Gwriam.

Defendant demurred because it did not affirmatively appear upon the face of the complaint that plaintiff is a resident of the State. If not, the court has not jurisdiction. Code Civ. Pro., § 1780.

The jurisdiction of the Municipal Court does -not have to appear in the pleadings affirmatively any more than that of the Supreme Court. Meuthen v. Eyelis, 3-3 Mise. Rep. 98. The question of the plaintiff’s residence, therefore, does not have to appear in this instance. Herbert v. Montana Diamond Co., 81 App. Div. 212. So far as the obiter dicto, in O’Reilly v. New Brunswick A. & N. Y. Steamboat Co., 28 Misc. Rep. 112, conflict, they have been overruled by the case last cited.

The demurrers should, therefore, have been overruled; but judgment has not been entered thereon, and the appeals have been prematurely taken. Watson v. Duryea, 133 App. Div. 233.

The appeals should, therefore, be dismissed, with ten dollars costs.

Present: Seabury, Guy & Whitney, JJ.

Appeals dismissed, with ten dollars costs.