
    James Dale, Respondent, v. William A. Prentice, Appellant.
    Fourth Department,
    May 6, 1908.
    Court—justice of the peace—jurisdiction — amount in controversy — non-resident defendants.
    A justice of the peace has no authority to determine that the total amount of the accounts of the plaintiff and defendant exceeds the sum of §400 and that, therefore, he has no jurisdiction of the action under subdivision 4 of section 2863 of the Code of Civil Procedure, except upon satisfactory proof Of that fact,.
    A justice o£ the peace has jurisdiction of an action brought by a non-resident plaintiff against a defendant who is a non-resident of the county in which the town is situate, provided the defendant is within the town at the time of the commencement of the action.
    Williams and Robson, JJ., dissented.
    Appeal by the defendant, William A. Prentice, from a judgment of the Wyoming County Court, entered in the office of the clerk of said county on the 11th day of November, 1907, which reversed a judgment of the Justice’s Court dismissing the plaintiff’s action.
    The action was commenced before a justice of the peace of the town of Cenesee Falls, Wyoming county, on the 4th day of January, 1907, by service of a summons in that town upon the defendant to recover for work, labor and services and for goods sold and delivered.- The sum total of the accounts of both parties as appeared by the allegations of the complaint and answer of the respective parties and the demand of each for judgment exceeded $400.
    It also appeared that both parties were non-residents of the county of Wyoming, but were residents of and were actually residing in the town of Portage, Livingston county.
    On the return day the defendant appeared specially and objected that the justice did not have jurisdiction of the person of the defendant under section 2869 of the Code of Civil Procedure, both parties being non-residents of the county of Wyoming. The defendant also objected that the justice did not have jurisdiction of the subject-matter of the action under subdivision 4 of section 2863 of the Code of Civil Procedure because the sum total of the accounts exceeded $400, and he moved to. dismiss the action upon both grounds.
    The justice held that he had jurisdiction of the defendant notwithstanding both parties were non-residents of the county of Wyoming, but decided without taking any proof and solely because of the allegations contained in the complaint and answer that the suin total of the accounts of both parties exceeded the sum of $400 ; that, therefore, he did not have jurisdiction and so dismissed the action, with $3 costs, and entered judgment accordingly.
    From that judgment an appeal was taken by the plaintiff to the County Court where it was determined that the justice had jurisdiction both of the person of the defendant and of the subject-matter of the action and the judgment of the justice was reversed, with forty-three dollars and sixty-five cents costs against the defendant, and the judgment, which is the subject of this appeal, was entered.
    The facts are not in dispute and the only question presented by this appeal is, did the justice of the peace have jurisdiction of the person of the defendant, and if so, was it competent for him to determine that he did not have jurisdiction of the subject-matter of the action solely upon the allegations contained in the complaint and answer and without it having been “ proved to his satisfaction ” that the sum total of the accounts of both parties exceeded the sum of $400 %
    
    
      
      Charles D. Newton, for the appellant.
    
      E. W. Heading, for the respondent.
   McLennan, P. J.:

A justice of the peace has no authority to determine that the total amount of the accounts of a plaintiff and defendant, parties to an action brought before him, exceeds the sum of $400, and that, therefore, he has no jurisdiction of the action under subdivision 4 of section 2863 of the Code of Civil Procedure, except upon proof to his satisfaction of that fact. Such is the plain language of the section.

In the case at bar the plaintiff alleged, in substance, that the defendant ivas indebted to him upon an account in the sum of $200, and demanded judgment for that amount, besides costs. The defendant answered that he was not indebted to the plaintiff in any amount because of the matters set forth in the complaint, but, on the contrary, alleged that the plaintiff was owing him upon account $366.25, which he pleaded as a counterclaim and demanded judgment against the plaintiff for that amount. The plaintiff asserted before the justice, in substance, that not a single item of defendant’s alleged counterclaim constituted a valid claim against him and insisted that the defendant was indebted to him in the sum of $200, over and above all set-offs and counterclaims. So that if the plaintiff’s contention was correct the sum total of the accounts of both parties did not exceed $400.

In like manner the defendant contended that the sum total of the accounts was represented by his counterclaim amounting to but $366.25. As we have seen, without taking any proof, the justice decided that the amount of such accounts exceeded $400. When no proof was offered to support the claim or to ascertain the amount of the accounts of either party to the action, we think it cannot be said that it was “proved to the satisfaction of the justice” that the sum total of the accounts of both parties exceeded $400, and that the justice committed error in dismissing the action upon that ground. (Glackin v. Zeller, 52 Barb. 147, 149.)

In the case of Bartlett v. Mudgett (75 Hun, 292) the rule is stated in the head note as follows: “A justice of the peace has no authority to dismiss an action on the ground that the amount in dispute ■ exceeds $400, until it is made to appear to him by proof that the amount in dispute exceeds a sum of which he has jurisdiction. He is not ousted of jurisdiction because the amount claimed in the pleadings may exceed that-amount.”

If, however, the justice of the peace in this case did not have jurisdiction of the person of the defendant, as is contended by counsel, the action was properly dismissed, and it would be of no consequence if snch dismissal was placed upon the wrong ground. Whether or not the justice acquired jurisdiction of the person of the defendant depends upon section 2869 of the Oode of Civil Procedure. To ascertain its true meaning all the provisions of the section should be read together. (Dodd v. Ecker, 24 App. Div. 613, 616.)

We are only concerned with the meaning of subdivision 3 of the section which provides: Where the defendant is a non-resident of the county it may be brought before a justice of the town or city in which he is at the time of the commencement of the action.” In the case at bar, as we have seen, the defendant was a nonresident of the county of Wyoming, wherein the action was brought, but at the time of the commencement of the action he was in said county and in the town of Genesee Falls, and that therein the summons was served upon him. Appellant insists that the justice did not acquire jurisdiction, because both the plaintiff and defendant were°residents of Livingston county. But that is not the language of the statute. Apparently, the only requisite necessary to give a justice of any town jurisdiction of a defendant is that he should be in such town when the summons is served upon him, and should be a non-resident of the county in which such town is located. In such case it is of no consequence in which county the actual residence of the defendant may be; neither is the residence of the plaintiff of any importance.

The general provision of the section declares that an action must be brought before a justice of a town * * * wherein one of the parties resides * * *" except in one of the following cases.” Then four exceptions are specified:

“1. Where the defendant has absconded from his residence it may be brought before a justice of the town * * * in which the defendant * * * " is at the time of the commencement of the action.” The meaning of this provision is not ambiguous.
“ 2. Where tlie plaintiff is not a resident of the county * * * it must be brought in the town where the defendant resides, or in any adjoining town thereto.” This exception adds nothing, to the first provision of the section, as there it is provided that the action must be brought in a town where one of the parties resides. So that under either provision a plaintiff may go into any county of the State and sue a defendant where he resides.

The third exception, which is the one over which this controversy arises, has, as it seems to me, no other effect than to permit any plaintiff to bring an action against a defendant in any town in which such defendant may be, provided he is a non-resident of the county in which the town is located. It practically puts such nonresident defendant in the same situation as a defendant who has absconded from his residence. The intention of the Legislature is not very clearly expressed by the section, but, considering all of its provisions, we conclude tha,t it was intended to give a justice of any town jurisdiction of a defendant who is a non-resident of the county in which such town is situate, provided such defendant is within such town at the time of the commencement of the action.

The appellant contends that great hardship would result from such an interpretation of the section; that it would enable a plaintiff, a resident of a particular county, to follow a defendant, also a resident of such county, into another conntjr, a great distance from his residence, and bring an action against him in any town of such distant county where he might temporarily be; that the trial of such action must then take place away from the home of both parties, where it would be impossible to compel the attendance of witnesses and cause great and unnecessary expense to such defendant.

There is much force in the suggestion, but if an evil exists because of the provisions of the statute, the Legislature only is competent to change it. The court may only interpret and declare the meaning of the language employed.

But, on the other hand, suppose appellant’s interpretation of the section be adopted and two non-residents of a county should meet in one of the towns thereof, and one should purchase of the other ten dollars worth of produce to be delivered on board cars in such town, and agree to pay for the same when so delivered. The goods so purchased were, we will assume, delivered as agreed and were carried out of the county, and the purchaser then refuses to pay for the same and asserts that a justice of such town has no jurisdiction of an action brought to enforce such payment; that the vendor’s only remedy in such case is to follow the vendee into the county of which lie is a resident and into the town where he resides, and bring his action before a justice of that town.

We think the Legislature intended that in such a case a justice of the town in which such non-resident defendant “is at the time of the commencement of the action ” should have jurisdiction of the defendant, and so notwitstanding the plaintiff was also a nonresident of such county and town.

It was not intended that redress in Justice’s Court should be denied to a plaintiff simply because he and the defendant are both non-residents of the town in which the plaintiff seeks to enforce his rights. Ro case has been called to our attention in which the precise question involved has been decided. But, upon the language of section 2869 of the Code and upon reason as well, we conclude that the justice in this case had jurisdiction of the defendant, as well as of the subject-matter of the action.

It follows that the judgment' of the County Court should be affirmed, with costs.

All concurred, except Williams and Robson, JJ., who dissented.

Judgment affirmed, with costs.  