
    Joseph Larocque, Resp’t, v. Willis C. Harvey, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Justice’s court — Want op jurisdiction may be shown by affidavit ON APPEAL.
    A justice of the peace has no jurisdiction where both parties reside in another town not adjoining that of the justice, and such fact may be shown by affidavit on appeal from a judgment rendered by default.
    2. Same — Failure to appear no waiver of right to object.
    The fact that defendant did not appear in response to a summons which the justice had no jurisdiction to issue, is not a waiver of his right to subsequently object to an unauthorized judgment.
    Appeal from a judgment of the Franklin county court, affirming a judgment of the justice of the peace in favor of the plaintiff against the defendant.
    The defendant did not appear before the justice upon the return day of the summons.
    The justice of the peace resided and had his office in the town of Malone, and the summons was returnable there. Both the plaintiff and the defendant were at the time residents of the town of Waverly, in Franklin county. The town of Waverly does not adjoin the town of Malone. These facts appear upon ■the affidavit of the defendant, served in connection with his notice of appeal, and are not disputed.
    
      J. W. Webb, for app’lt; Kellar & Munsill, for resp’t
   Landon, J.

The justice of the peace had no jurisdiction of the person of the defendant. Houghtaling v. Groesbeck, 51 N. Y., 673. Section 2869, Code Civil Procedure, provides: “An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county.” There are certain exceptions not material here. A justice of the peace has the civil jurisdiction given him by statute, and no other. Section 2861. Upon appeal, errors in fact not affecting the merits, and not within the knowledge of the justice, may be determined upon affidavits. Section 3057. The affidavit of defendant, showing the residence of the parties, was, therefore, competent and properly received. Griffin v. Norton, 5 N. Y. State Rep., 812; Vallen v. McGuire, 18 id., 410.

The plaintiff cites § 3064. That section is- applicable to a defendant in default who seeks to open it. In such case he appeals to the discretion and favor of the court. Here the defendant asks no favor; he denies the jurisdiction of the justice. If the facts deprived the justice of jurisdiction, it was the defendant’s right to show them.

In Hoffman v. Barton, 14 N. Y. State Rep., 506, cited by plaintiff, it does not appear that such facts were shown. The fact that the defendant did not appear in response to a summons which the justice had no jurisdiction to issue, was no waiver of his right to his subsequent objection to an unauthorized judgment.

Judgment reversed, with costs.

Learned, P. J., and Mayhah, J., concur.  