Thiem v. Madden

34 N.Y. Sup. Ct. 371

• Court: New York Supreme Court
• Decided: June 15, 1882
• Status: Published

Opinion

HakdiN, J.:

Omission to demur does not waive the objection to the jurisdiction of the court. Such an objection may be raised at any time during the trial. (Code of Civil Procedure, § 499; Code, § 148; Burnham v. De Bevorse, 8 How., 159; Budd v. Bingham, 18 Barb., 494; Volarino v. Thompson, 3 Seld., 576; People v. Banker, 8 How. Pr., 258; Mosselman v. Caen, 1 Hun, 648; S. C., 21 How., 248; S. C., 34 Barb., 66; King v. Poole, 36 Barb., 247.)

Upon the trial of this action the County Court had “ power to decide the question of its own jurisdiction or its right to proceed,” and having made a decision to the effect that it had not jurisdiction, and that, therefore, judgment should go against the plaintiff and in favor of the defendants, the defendants upon entering such judgment, in virtue of the statute as to costs, were entitled to their costs and to enter the same in the judgment, and the County Court properly refused to vacate the judgment and properly allowed the same to stand, so that the defendants in virtue thereof, could collect their costs. (King v. Poole, 36 Barb., 242; Cumberland Coal Iron Co. v. Hoffman Steam Coal Co., 39 id., 16; Rugen v. Collins, 8 Hun, ; Cregin v. Brooklyn Crosstown R.R. Co., 19 id., 349 ; Humiston v. Ballard, 63 Barb., 11.) King v. Poole (supra), contains a sufficient criticism of Gormly v. McIntosh (22 Barb., 271), and Malone v. Clark (2 Hill, 658), to excuse ns from further comment upon the statements found in them.

¥e are satisfied that the weight of authority accords with the decision made below.

The order should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., and Haight, J., concurred.

Order affirmed, with ten dollars costs and disbursements.