
    Deborah Dwyer, Resp’t, v. Rathbone, Sard & Co., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1888.)
    
    County court—Jurisdiction of—Amount of judgment demanded— How the complaint can be amended on trial to conform to statute.
    The complaint stated that the work, labor and services of the plaintiff’s son were reasonably worth the sum of $1,000 or thereabouts, and that the defendants had only paid the plaintiff the sum of $500 or thereabouts. The defendants’ counsel moved to dismiss the complaint on the ground that it showed on its face that the court had no jurisdiction. Plaintiff’s counsel then moved to be allowed to amend the complaint so that the prayer for relief would read “demands judgment for the sum of $1,000, or any less amount which may be found due, etc ” This motion was granted. Held, that the court had power to grant this amendment, as, strictly speaking, there was no demand for any specific sum, and whether the plaintiff sought to recover an amount exceeding $1,000 was purely a matter of inference; that the plaintiff’s claim under the original complaint before the amendment, was for a sum of money, less than $1,000, and, therefore, within the jurisdiction of the county court.
    Appeal from an order of the county court of Albany county, directing an inspection of the books of the defendants.
    
      Geo. L. Stedman, for app’lts; B. R. Heyward, for resp’t.
   Ingalls, J.

This action was commenced by the plaintiff' in the county court of Albany county to recover of the defendants compensation for the services of her son, who was a minor. The summons, complaint, answer and order directing the amendment of the complaint are hereafter set out. The answer does not allege want of jurisdiction, nor was the complaint demurred to for that reason or any other. The appeal papers do not show that the complaint was served with the summons. No objection in any form appears to have been made by the defendants to the complaint, or to the jurisdiction of the county court, until the action was moved for trial, which occurred on the 21st day of November, 1887, when the defendants’ counsel moved to-dismiss the complaint on the ground that it showed on its face that the court had no jurisdiction," whereupon the plaintiff’s counsel moved to amend the complaint so that the prayer for relief would read “ wherefore the plaintiff demands judgment for the sum of $1,000, or any less amount, which may be found due on account of the services mentioned therein.”

The amendment was allowed, and the motion to dismiss the complaint was denied. The effect of such amendment would seem to be merely to allow the plaintiff to make definite and certain her complaint in regard to the demand for judgment, which, without such amendment, was indefinite, and such relief appears to have been properly granted, and within the power of the court to allow. No' further step seems to have been taken in the action until the sixth day of March following, when the court granted an order, directing an inspection of the account-books of the defendants, and an appeal was taken by the defendants from such order, which is the appeal now under consideration. The defendants’ counsel contends that such order was. not regular for the reason that the county court possessed no jurisdiction of the action, and therefore the order was-void. That such want of jurisdiction is apparent upon the face of the complaint, in that it is not alleged that the-plaintiff’s claim for judgment did not exceed $1,000, which presents the real, and only, question upon this appeal. The constitution of the state, article 6, section 15, provides, among other things, in regard to the jurisdiction of the county court, as follows: “They shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed $1,000.” By section 2 of the Code of Civil Procedure, the county court is declared to be a court of record, and we have seen that the constitution confers upon such courts original jurisdiction within certain limits. The Code of Civil Procedure also, by section 340, in defining the jurisdiction of the county court, provides as follows:

“3. To an action for any other cause where the defendant is. or if there are two or more defendants, where all of them.are at the time of the commencement of the action, residents of the county, and wherein the complaint demands judgment for a sum of money only, not exceeding one thousand dollars.” It will be perceived that the provision of the constitution to which we have referred does not declare that the allegation of the complaint as to residence of the defendants, or the amount of the plaintiff’s claim shall be the test of jurisdiction; that is to be found only in the Code of Civil Procedure, to which reference has been made. While such question of jurisdiction may be raised by demurrer, where the defect appears upon the face of the complaint, or by answer, where it does not thus appear, yet section 499 of the Code provides that the omission to demur or answer shall not be deemed a waiver of such objection. Upon the facts which appear by the appeal papers, we deem it justifiable to hold that jurisdiction was acquired by the service of the summons, and continued until it clearly appeared that there was a failure thereof, by a demand for a money judgment which exceeded one thou • sand dollars. McIntyre v. Carriere, 17 Hun, 65.

The case at bar seems to be brought clearly within the doctrine of the decision referred to, and which recognizes the power of the court to direct an amendment of the demand for judgment. In an important particular, the case under consideration seems less objectionable than the one referred to, so far as the right to direct an amendment is concerned, for the reason that an examination of the complaint herein will show that strictly there was no demand of judgment for any specific sum of money, and whether the plaintiff sought to recover an amount exceeding one thousand dollars was purely matter of inference. It is stated, in substance, that the work, labor and services of the plaintiff's son was reasonably worth the sum of one thousand dollars or thereabouts, and that the defendants had only paid the plaintiff the sum of five hundred dollars or thereabouts.

It should not, we think, be held for the purpose of depriving the court of jurisdiction, that the words “or thereabouts ” must be construed to increase the plaintiff’s claim beyond one thousand dollars, rather than so as' to bring it short of that sum. Again, the complaint states that the payments made by the defendants which were to apply upon the plaintiff’s claim amounted to five hundred doHars or thereabouts. Webster defines the word “thereabouts” as follows: “2. Nearly, near that number, degree or quantity.” It would seem to be a reasonable construction of the pleading in view of all the facts, to hold that the plaintiff’s claim, under the original complaint, before the amendment, was for a sum of money less than one thousand dollars, and therefore-within the jurisdiction of the court.

The claim for judgment in the complaint before the amendment was as follows: “ Wherefore the plaintiff demands judgment that an account be taken of the work, labor and services of said John Dwyer, and of the payments made on account thereof of the defendants, and that judgment be rendered in her favor for whatever sum still remains unpaid, together with the costs.” Such demand for an account, was obviously not intended by the pleadér, in the technical legal sense, but rather as a demand that the value of the services should be ascertained, and the payments applied thereon, and the balance declared.

Strictly construed, the complaint does not contain a demand for a definite sum of money; and the amendment at the trial supplied that defect, if such it should be regarded, and thereby brought the demand for judgment clearly within the provision of section 340 of the Code of Civil Procedure, sub. 3, “ Wherein the complaint demands judgment for a sum of money only, not exceeding one thousand dollars.” Under the present system of pleading, a construction is to be placed upon a pleading which tends to-uphold, rather than to overthrow it. Applying such rule of interpretation to the complaint herein, we think it may fairly be held that the claim of the plaintiff did not exceed the jurisdiction of the county court. The pleading might have been more definite; which the defendants could have-required by motion, if they had deeméd it necessary.

The facts developed by this appeal are peculiar, and we deem the case distinguishable from Gilbert v. York (41 Hun, 594), cited by the counsel for the appellant. But even in that case, an amendment of the pleading was allowed by the general term.

In the case at bar there is no pretense, but that the court possessed jurisdiction of the parties, as they all resided within the county of Albany. And the defendants appeared generally in the action by attorneys. We refer to Boss v. Konor, which was argued in this court at the May term.

The order should be affirmed, with costs.

Learned, P. J., and Landon, J., concur.

The following are the summons, complaint, answer and order directing the amendment of the complaint:

IN THE SUPREME COURT OP THE STATE OP NEW YORK.

Albany County Court—Trial Desired in Albany County.

Deborah Dwyer, Plaintiff, agst. Rathbone, Sard & Co., Defendant. ....... ..,

To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff’s attorney within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, Albany, N. Y., September 19, 1887. B. R. HEYWARD, Plaintiff’s Attorney. Office and post-office address : 20 North Pearl street. Albany, N. Y. Albany County Court.

Deborah Dwyer, Plaintiff, agst. I Rathbone, Sard & Co., Defendant.

The plaintiff, Deborah Dwyer, for a cause of action against the defendant, Rathbone, Sard & Co., by B. R. Heyward, her attorney, respectfully shows to the court and alleges:

I. That the plaintiff is a widow, having a son, John Dwyer, hereinafter mentioned, who is a minor, and to whose services she is entitled by law.

II. That on or about the 12th day of November, 1885, she hired her said son, John Dwyer, to the defendants, and he worked for them until on or about the 1st day of August, 1887.

III. That the work, labor and services so rendered by the said John Dwyer for the defendants was reasonably worth the sum of $1,000, or thereabouts, but the said defendants have only paid to the plaintiff the sum of $500, or thereabouts, on account thereof, and have refused to pay any more.

IV. That the plaintiff has no means of ascertaining the exact condition of the accounts between herself and the defendants, as said defendants have all said accounts in their own possession and the plaintiff has no access thereto.

V. That the defendant is a domestic corporation doing business as stove manufacturers, under and by virtue of the Laws of the state of New York, in the city and •county of Albany, N. Y., where their principle office is actually located. Wherefore, the plaintiff demands judgment that an account be taken of the work, labor and services of said John Dwyer, and the payments made on account thereof by the defendants, and that judgment be rendered in her favor for whatever sum still remains unpaid together with costs.

B. R. HEYWARD, Plaintiff’s Attorney. Office and post-office address, 20 North Pearl St. Albany, N. Y.

Are any County Court :

Deborah Dyer, Plaintiff, agst. Rathbone, Sard & Company, Defendant.

The defendant, answering the plaintiff’s complaint in this action, admits that it is a domestic corporation, doing business as alleged in the complaint, and denies each and every other allegation therein contained. The defendant further answering the plaintiff’s complaint, alleges that, prior to the commencement of this action, it had paid for all work, labor and services rendered by said John Dwyer for the defendant, the reasonable worth and value thereof, and that no part thereof remains unpaid. Wherefore the defendant demands judgment that the plaintiff’s complaint be dismissed with costs. STEDMAN, THOMPSON & ANDREWS, Defendants Attorneys. 443 Broadway, Albany, N. Y. At a term of the county court, held in and for the county of Albany, at the City Hall, in the city of Albany, on the 21st day of November, 1887 : Present—Hon. John C. Nott, County Judge.

Deborah Dwyer,

agst. Rabthone, Sard & Company. mi..,.. .. . ■ ... ......... ^

This case having come on in its order on the calendar, •and a motion having been made on behalf of the defendant to dismiss the complaint, on the ground that it showed on its face that this court had no jurisdiction, and a motion having been made on behalf of the plaintiff to amend the complaint : Now, after hearing Messrs. Stedman, Thompson ■&, Andrews, for the defendant, and Mr. Heyward for the plaintiff, it is ordered that the motion to dismiss the complaint be and the same hereby is denied, and that the complaint be amended so that the prayer for relief shall read as follows:

Wherefore, the plaintiff demands judgment for the sum ■of $1,000, or any less amount which may be found due on account of the services mentioned herein.  