Sullivan v. Curtayne

247 A.D. 756

Opinion

Order denying plaintiff’s motion to strike from the answer the first separate defense on the ground that it does not constitute a defense to the action in that the jurisdiction of the United States District Court cannot be attacked collaterally affirmed, with ten dollars costs and disbursements. For the purposes of this motion, we must deem the allegations of the defense to be true and that the plaintiff did- not reside or have his domicile or principal place of business within the jurisdictional limits of the United States District Court for the Southern District of New York. These allegations, if denied, present a triable issue of fact, the burden of proving which, of course, is upon the defendant. (O’Donoghue v. Boies, 159 N. Y. 87, 98, 99; Chemung Canal Bank v. Judson, 8 id. 254; Poillon v. Lawrence, 77 id. 207.) Young, Hagarty, Johnston and Taylor, JJ., concur; Lazansky, P. J., dissents.