
    Sarah J. Dulso, Appellant, v. Joseph C. Dulso, Respondent.
    Fourth Department,
    November 17, 1915.
    Husband and wife — separation—pleading — complaint — amendment inserting allegation as to place of marriage.
    Where a complaint in an action for separation fails to show that the court has jurisdiction by omitting to allege that the marriage was performed in this State, the court may allow the defect to be cured by amendment. Such an amendment merely corrects the defective pleading and does not bring the cause of action into being.
    Appeal by the plaintiff, Sarah J. Dulso, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 24th day of June, 1915, upon a dismissal of the complaint upon the merits by direction of the court at the opening of the case.
    The complaint was dismissed upon the ground that it appeared upon the face thereof that the court had no jurisdiction of the subject of the action.
    Before this motion was granted plaintiff asked leave to amend her complaint by adding to the allegation therein of the time and place of the marriage of plaintiff and defendant an allegation that the parties were married in the town of Campbell, Steuben county, N. Y., at the time stated in the complaint. Plaintiff’s motion was, as. the court stated, denied, not in the exercise of discretion, but solely upon the ground of lack of power to grant the amendment.
    
      James O. Sebring, for the appellant.
    
      Clarence Ten Eyck, for the respondent.
   Per Curiam:

Defendant and plaintiff are husband and wife. Plaintiff’s action is for a separation. One of the cases in which, as provided by section 1763 of the Code of Civil Procedure, such an action may be maintained -is, Where the parties were married within the' State, and the plaintiff is a resident thereof, when the action is commenced.” Plaintiff alleges in her complaint that she is a resident of the State of New York, but does not state where her marriage with defendant took place. It is conceded that because of this omission the complaint did not state a cause of action of which the court had jurisdiction.

The grounds upon which plaintiff’s motion to amend the complaint was denied were thus stated by the trial court: “Ido not see how I can permit an amendment which will give me jurisdiction-where I have not jurisdiction of the subject matter. * * * This is a court of general jurisdiction ordinarily, but as regards this class of actions it is a court of limited jurisdiction. Its jurisdiction is limited to certain situations. * * * In other words unless the papers upon their face allege the facts which bring the plaintiff within the class of these actions of which this court has jurisdiction, that they are defective. If I am right, I have not the power to do anything in a case in which I have not jurisdiction. I will rule squarely that I do not think I can permit an amendment. In other words, the motion to amend is denied for the reason that in my judgment such an amendment would establish a cause of action, whereas now no cause of action is shown by the papers before me. That is, an amendment cannot give me jurisdiction of the subject matter where now I have not any jurisdiction of the subject matter. I do not think I have the power to make, such an amendment.”

We are of the opinion that the court to some extent misconceived the purpose of the amendment asked for and its effect upon the cause of action sought to be pleaded, if it should be granted. Its effect if allowed would not have been to create a cause of action of which the court had jurisdiction, but would have been by proper allegation to show that a cause of action of which the court had jurisdiction really existed. The cause of action sought to be pleaded of which the court would have had jurisdiction, if properly pleaded, existed when the action was brought. It had not been properly pleaded so as to show that the court had jurisdiction. The amendment would, if allowed, simply correct a defective pleading and not call a cause of action into being. It has frequently been held that complaints defective because of a failure to allege the necessary facts upon which the jurisdiction of the court depended might be amended in those particulars on proper application. Mix v. Mix (1 Johns. Ch. 204) was an action for divorce. A demurrer to the bill was sustained. It is said in the opinion of Chancellor Kent in that case: “To give the court jurisdiction, in this case, it must appear that the parties were ‘inhabitants of this State at the time of committing the adultery.’ ” After discussing the allegations of the bill he concludes: “The bill is, therefore, destitute of certainty in this most material point, the defendant’s domicil. The bill ought, therefore, strictly, to be dismissed, but as the objection does not touch the subject matter, or what may properly be called the merits of the case, and may have arisen from inattention in drawing the bill, I shall give the plaintiff leave to amend in twenty days on payment of costs, and in default thereof that the bill be dismissed.” In Henneke v. Schmidt (121 App. Div. 516) the action had been brought in County Court. Plaintiff failed to allege in his complaint the jurisdictional fact that defendant was a resident of the county. The court held that the denial of plaintiff’s motion made at the trial to amend his complaint in that particular was error. The reason for so holding is thus summarized in the last sentence of the opinion: “The court got jurisdiction of the action by the summons, if the defendant was a resident of the county in fact, and should have allowed the amendment..” Although it is doubtless "true that the amendment in that case was unnecessary, for the reason that the court had as to the defendant acquired jurisdiction of the action, whether he was a resident of the county or not, because of the fact that he had already appeared and answered generally without raising in any manner objection to the sufficiency of the complaint (See Meyers v. American Locomotive Co., 201 N. Y. 163), yet the court’s decision is placed squarely upon the power of the court to grant the amendment. That case is cited with approval in People v. Bailey (136 App. Div. 130). (See, also, Jenkins v. Hall, 85 Hun, 619; Hogan v. Glueck, 2 App. Div. 82; Shaw v. City of New York, 83 id. 212.) We do not think the case of Halpern v. Langrock Bros. Co. (169 App. Div. 464) conflicts with our conclusions above expressed.

The judgment should be reversed and a new trial granted, with costs to appellant to abide event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  