Whitehead v. Kennedy

6 Daly 546

• Court: New York Court of Common Pleas
• Decided: December 4, 1876
• Status: Published

Opinion

By the Court.

*

The answer of the defendant Hannah Kennedy sets up as a plea to the jurisdiction of the court, that neither at the commencement of the action, nor at the time of putting in the answer, did she reside in the city and county of New York, but resided in the county of Westchester, where she was served with the summons and complaint in the action. The summons and complaint had been previously served on David T. Kennedy, in the city of New York, where he then resided. The court acquired jurisdiction of the action from the fact that David T. Kennedy, one of the joint obligors sued, resided in this city; and having se acquired jurisdiction, the other joint obligor might be served with the summons in any other county of the State (Porter v. Lord, 13 How. Pr. 254; Bates v. Reynolds, 7 Bos. 685).

These were cases in the Superior Court of the city of New York; but as the jurisdiction conferred on that court and the Court of Common Pleas is identical, the authorities apply to-both courts (Code, § 33).

The jurisdiction so acquired seems to be general and not local in its nature, and appears to be opposed to the views and the decisions in Landers v. Staten Island R. R. Co. (53 N. Y. 450), and Hoag v. Lamont (60 N. Y. 96); but such is really not the case. Those decisions directly affect jurisdiction attempted to be conferred by the legislature of the State subsequent to the adoption of the amendment to the judiciary article of the Constitution of this State, on November 2, 1869 (Const, art. 6, § 12; L. 1870, ch. 470; L. 1871, ch. 282; L. 1873, cxh. 239).

The jurisdiction exercised by this court was derived from the Code (§ 33), conferred by the legislature long before the adoption of the amended judiciary article of the Constitution, which article expressly continued this court “ with the powers and jurisdiction ” it then possessed. In so far, then, as the jurisdiction of this court is extra-territorial by legislation before the constitutional confirmation above quoted, it is unaffected by the authorities cited.

The plea was frivolous, and the order should be affirmed.

Order affirmed.

Present Charles P. Daly, Ch. J., and Joseph P. Daly and Tan Hoesen, JJ.