Summary
In Pratt v. Pennsylvania R. Co., 66 Misc. 183, the demurrer was interposed because it did not appear upon the face of the complaint that plaintiff was a resident of the state.
Summary of this case from Todd Co. v. Southern Pacific Co.Opinion
February, 1910.
Allen Culver, for appellant.
Robinson, Biddle Benedict (Norman B. Beecher, George R. Allen and W.W. Cunningham, of counsel), for respondent.
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, 33 Misc. 98. The question of the plaintiff's residence, therefore, does not have to appear in this instance. Herbert v. Montana Diamond Co., 81 A.D. 212. So far as the obiter dicta in O'Reilly v. New Brunswick A. N.Y.S.teamboat Co., 28 Misc. 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 A.D. 233.
The appeals should, therefore, be dismissed, with ten dollars costs.
Present: SEABURY, GUY WHITNEY, JJ.
Appeals dismissed, with ten dollars costs.